Criminal Procedure - Rule 112| Page 1 of 80

THIRD DIVISION

[G.R. No. 134744. January 16, 2001.]

GIAN PAULO VILLAFLOR, Petitioner, v. DINDO VIVAR y GOZON, Respondent.

D E C I S I O N


PANGANIBAN, J .:


The absence of a preliminary investigation does not impair the validity of an information or
render it defective. Neither does it affect the jurisdiction of the court or constitute a ground
for quashing the information. Instead of dismissing the information, the court should hold
the proceedings in abeyance and order the public prosecutor to conduct a preliminary
investigation.
The Case

Before us is a Petition for Review under Rule 45 of the Rules of Court, seeking to set aside
the Orders issued by the Regional Trial Court (RTC) of Muntinlupa City (Branch 276) in
Civil Case No. 97 134. 1 Dated January 20, 1998, 2 the first Order granted the Motion to
Quash the Informations and ordered the dismissal of the two criminal cases. The second
Order dated July 6, 1998, denied the Motion for Reconsideration.
The Facts

Culled from the records and the pleadings of the parties are the following undisputed facts.

An Information 3 for slight physical injuries, docketed as Criminal Case No. 23365, was
filed against Respondent Dindo Vivar on February 7, 1997. The case stemmed from the
alleged mauling of Petitioner Gian Paulo Villaflor by respondent around 1:00 a.m. on
January 27, 1997 outside the Fat Tuesday Bar at the Ayala Alabang Town Center,
Muntinlupa City. After the severe beating he took from respondent, petitioner decided to
leave the premises together with a friend who was in the restroom when the mauling
incident took place. On his way out, petitioner again met respondent who told him, "Sa
susunod gagamitin ko na itong baril ko" 4 ("Next time, I will use my gun on you").

When the injuries sustained by petitioner turned out to be more serious than they had
appeared at first, an Information 5 for serious physical injuries, docketed as Criminal Case
No. 23787, was filed against Respondent. 6 The earlier charge of slight physical injuries
was withdrawn.

At the same time, another Information 7 for grave threats, docketed as Criminal Case No.
23728, 8 was filed against respondent on March 17, 1997.

On April 14, 1997, respondent posted a cash bond of P6,000 in Criminal Case No. 23787
(for serious physical injuries). 9 Instead of filing a counter-affidavit as required by the trial
court, he filed on April 21, 1997, a Motion to Quash the Information in Criminal Case No.
23728 (for grave threats). He contended that the threat, having been made in connection
with the charge of serious physical injuries, should have been absorbed by the latter. Thus,
he concluded, Criminal Case No. 23728 should be dismissed, as the trial court did not
acquire jurisdiction over it. 10

In an Order dated April 28, 1997 in Criminal Case No. 23728, the Metropolitan Trial Court
(MTC) denied the Motion to Quash, as follows:

"For consideration is a motion to quash filed by accused counsel. Considering that
jurisdiction is conferred by law and the case filed is grave threats which is within the
jurisdiction of this Court and considering further that a motion to quash is a prohibited
[pleading] under the rule on summary procedure, the motion to quash filed by accused
counsel is DENIED.

WHEREFORE, the motion to quash filed by accused counsel is hereby DENIED and let
the arraignment of the accused be-set on June 25, 1997 at 2:00 o clock in the afternoon."
11

The Motion for Reconsideration filed by respondent was denied by the MTC on June 17,
1997. 12 Thus, he was duly arraigned in Criminal Case No. 23728 (for grave threats), and
he pleaded not guilty.

On July 18, 1997, respondent filed a Petition for Certiorari with the RTC of Muntinlupa
City. This was docketed as Civil Case No. 97-134. On January 20, 1998, after the parties
submitted their respective Memoranda, the RTC issued the assailed Order which reads as
follows:

"The Judicial Officer appears to have acted with grave abuse of discretion amounting to
lack of jurisdiction in declaring and denying the MOTION TO QUASH as a prohibitive
motion. The same should have been treated and [should have] proceeded under the regular
rules of procedure. The MOTION TO QUASH THE INFORMATIONS filed without
preliminary investigation is therefore granted and these cases should have been dismissed.

Let this Petition be returned to the Metropolitan Trial Court, Branch 80-Muntinlupa City
for appropriate action." 13

The RTC, in an Order dated July 6, 1998, denied the unopposed Motion for
Reconsideration, as follows:
Criminal Procedure - Rule 112| Page 2 of 80


"Submitted for resolution is the unopposed Motion for Reconsideration filed by Private
Respondent.

This Court agrees with the contention of private respondent that the Motion to Quash filed
by petitioner in the inferior court is a prohibited pleadings under Rules on Summary
Procedure so that its denial is tenable. However, it would appear that the criminal charges
were filed without the preliminary investigation having been conducted by the Prosecutors
Office. Although preliminary investigation in cases triable by inferior courts is not a matter
of right, the provision of Sec. 51 par 3(a) of Republic Act 7926 entitled "An Act
Converting the Municipality of Muntinlupa Into a Highly Urbanized City To Be Known as
the City of Muntinlupa" provides that the city prosecutor shall conduct preliminary
investigations of ALL crimes, even violations of city ordinances. This Act amended the
Rules on Criminal Procedure. Since this procedure was not taken against accused, the
Order dated January 20, 1998 stands.

The Motion for Reconsideration is therefore denied." 14

Hence, this Petition. 15
The Issues


Petitioner submits the following issues for our consideration: 16
"I

Can the court motu propio order the dismissal of the two (2) criminal cases for serious
physical injuries and grave threats on the ground that the public prosecutor failed to
conduct a preliminary investigation?
"II

Should the failure of the public prosecutor to conduct a preliminary investigation be
considered a ground to quash the criminal informations for serious physical injuries and
grave threats filed against the accused-respondent?
"III

Should respondents entry of plea in the [grave] threats case and posting of cash bond in
the serious physical injuries case be considered a waiver of his right, if any, to preliminary
investigation?"
The Courts Ruling


The Petition is meritorious.

First Issue:

Lack of Preliminary Investigation

Preliminary investigation is "an inquiry or proceeding to determine whether there is
sufficient ground to engender a well founded belief that a crime has been committed and
the respondent is probably guilty thereof, and should be held for trial." 17 A component
part of due process in criminal justice, preliminary investigation is a statutory and
substantive right accorded to the accused before trial. To deny their claim to a preliminary
investigation would be to deprive them of the full measure of their right to due process. 18

However, the absence of a preliminary investigation does not impair the validity of the
information or otherwise render it defective. 19 Neither does it affect the jurisdiction of the
court or constitute a ground for quashing the information. 20 The trial court, instead of
dismissing the information, should hold in abeyance the proceedings and order the public
prosecutor to conduct a preliminary investigation. 21

Hence, the RTC in this case erred when it dismissed the two criminal cases for serious
physical injuries (Criminal Case No. 23787) and grave threats (Criminal Case No. 23728)
on the ground that the public prosecutor had failed to conduct a preliminary investigation.

Furthermore, we do not agree that a preliminary investigation was not conducted. In fact, a
preliminary investigation for slight physical injuries was made by the assistant city
prosecutor of Muntinlupa City. The said Information was, however, amended when
petitioners injuries turned out to be more serious and did not heal within the period
specified in the Revised Penal Code.

We believe that a new preliminary investigation cannot be demanded by Respondent. This
is because the change made by the public prosecutor was only a formal amendment. 22

The filing of the Amended Information, without a new preliminary investigation, did not
violate the right of respondent to be protected from a hasty, malicious and oppressive
prosecution; an open and public accusation of a crime; or from the trouble, the expenses
and the anxiety of a public trial. The Amended Information could not have come as a
surprise to him for the simple and obvious reason that it charged essentially the same
offense as that under the original Information. Moreover, if the original charge was related
to the amended one, such that an inquiry would elicit substantially the same facts, then a
new preliminary investigation was not necessary. 23

Criminal Procedure - Rule 112| Page 3 of 80

Second Issue:

Motion to Quash

As previously stated, the absence of a preliminary investigation does not impair the validity
of the information or otherwise render it defective. Neither does it affect the jurisdiction of
the court over the case or constitute a ground for quashing the information. 24

Section 3, Rule 117 of the Revised Rules of Criminal Procedure, provides the grounds on
which an accused can move to quash the complaint or information. These are: (a) the facts
charged do not constitute an offense; (b) the court trying the case has no jurisdiction over
the offense charged (c) the court trying the case has no jurisdiction over the person of the
accused; (d) the officer who filed the information had no authority to do so; (e) the
information does not conform substantially to the prescribed form; (f) more than one
offense is charged, except in those cases in which existing laws prescribe a single
punishment for various offenses; (g) the criminal action or liability has been extinguished;
(h) the information contains averments which, if true, would constitute a legal excuse or
justification; and (i) the accused has been previously convicted or is in jeopardy of being
convicted or acquitted of the offense charged.

Nowhere in the above-mentioned section is there any mention of a lack of a preliminary
investigation as a ground for a motion to quash. Moreover, such motion is a prohibited
pleading under Section 19 of the Revised Rules on Summary Procedure. In the present
case, the RTC therefore erred in granting herein respondents Motion to Quash.

Furthermore, we stress that the failure of the accused to assert any ground for a motion to
quash before arraignment, either because he had not filed the motion or had failed to allege
the grounds therefor, shall be deemed a waiver of such grounds. 26 In this case, he waived
his right to file such motion when he pleaded not guilty to the charge of grave threats.

In view of the foregoing, we find no more need to resolve the other points raised by
petitioner.

WHEREFORE, the Petition is GRANTED, and the assailed Orders of the Regional Trial
Court of Muntinlupa City are REVERSED. No costs.

SO ORDERED.

Melo, Vitug, Gonzaga-Reyes and Sandoval-Gutierrez, JJ., concur.

Criminal Procedure - Rule 112| Page 4 of 80

SECOND DIVISION
G.R. No. 121234 August 23, 1995
HUBERT J. P. WEBB, Petitioner, v. HONORABLE RAUL E. DE LEON, the
Presiding Judge of the Regional Trial Court of Paraaque, Branch 258,
HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial
Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE
GUIA, JOVENCITO ZUO, LEONARDO GUIYAB, JR., ROBERTO LAO, PABLO
FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and
HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional
Trial Court of Paraaque, Branch 274, respondents, LAURO VIZCONDE, intervenor.
G.R. No. 121245 August 23, 1995
MICHAEL A. GATCHALIAN, Petitioner, v. HONORABLE RAUL E. DE LEON, the
Presiding Judge of the Regional Trial Court of Paraaque, Branch 258,
HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial
Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE
GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU
OF INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the
Presiding Judge of the Regional Trial Court of Paraaque, Branch 274, Respondents.
G.R. No. 121297 August 23, 1995
ANTONIO L. LEJANO, Petitioner, v. HONORABLE RAUL E. DE LEON, the
Presiding Judge of the Regional Trial Court of Paraaque, Branch 258,
HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial
Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE
GUIA, JOVENCITO ZUO, LEONARDO GUIYAB, JR., ROBERTO LAO, PABLO
FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and
HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional
Trial Court of Paraaque, Branch 274,Respondents.
PUNO, J .:
Before the Court are petitions for the issuance of the extraordinary writs of certiorari,
prohibition and mandamus with application for temporary restraining order and
preliminary injunction to: (1) annul and set aside the Warrants of Arrest issued against
petitioners by respondent Judges Raul E. de Leon and Amelita Tolentino in Criminal Case
No. 95-404; (2) enjoin the respondents from conducting any proceeding in the
aforementioned criminal case; and (3) dismiss said criminal case or include Jessica Alfaro
as one of the accused therein.
1

From the records of the case, it appears that on June 19, 1994, the National Bureau of
Investigation (NBI) filed with the Department of Justice a letter-complaint charging
petitioners Hubert Webb, Michael Gatchalian, Antonio J. Lejano and six (6) other
persons,
2
with the crime of Rape with Homicide. Forthwith, the Department of Justice
formed a panel of prosecutors headed by Assistant Chief State Prosecutor Jovencio R.
Zuo to conduct the preliminary investigation
3
of those charged with the rape and killing
on June 30, 1991 of Carmela N. Vizconde;
4
her mother Estrellita Nicolas-Vizconde,
5
and
her sister Anne Marie Jennifer
6
in their home at Number 80 W. Vinzons, St., BF Homes,
Paraaque, Metro Manila.
During the preliminary investigation, the NBI presented the following: (1) the sworn
statement dated May 22, 1995 of their principal witness, Maria Jessica M. Alfaro who
allegedly saw the commission of the crime;
7
(2) the sworn statements of two (2) of the
former housemaids of the Webb family in the persons of Nerissa E. Rosales and Mila
S.Gaviola;
8
(3) the sworn-statement of Carlos J. Cristobal who alleged that on March 9,
1991 he was a passenger of United Airlines Flight No. 808 bound for New York and who
expressed doubt on whether petitioner Webb was his co-passenger in the trip; (4) the sworn
statement of Lolita Birrer, a former live-in partner of Gerardo Biong, who narrated the
manner of how Biong investigated and tried to cover up the crime at bar;
9
(5) the sworn
statements of Belen Dometita and Teofilo Minoza, two of the Vizconde maids, and the
sworn statements of Normal White, a security guard and Manciano Gatmaitan, an engineer.
The autopsy reports of the victims were also submitted and they showed that Carmela had
nine (9) stab wounds, Estrellita twelve (12) and Jennifer nineteen (19).
10
The genital
examination of Carmela confirmed the presence of spermatozoa.
11

Before submitting his counter-affidavit, petitioner Webb filed with the DOJ Panel a Motion
for Production And Examination of Evidence and Documents for the NBI to produce the
following:
(a) Certification issued by the U.S. Federal Bureau of Investigation on the admission to and
stay of Hubert Webb in the United States from March 9, 1991 to October 22, 1992;
(b) Laboratory Report No. SN-91-17 of the Medico Legal Officer, Dr. Prospero A.
Cabanayan, M.D.;
(c) Sworn Statements of Gerardo C. Biong (other than his Sworn Statement dated October
7, 1991);
Criminal Procedure - Rule 112| Page 5 of 80

(d) Photographs of fingerprints lifted from the Vizconde residence taken during the
investigation;
(e) Investigation records of NBI on Engr. Danilo Aguas, et al.;
(f) List of names of 135 suspects/persons investigated by the NBI per Progress Report
dated September 2, 1991 submitted by Atty. Arlis Vela, Supervising Agent;
(g) Records of arrest, interview, investigation and other written statements of Jessica
Alfaro (other than the May 22, 1995 Sworn Statement) conducted by the NBI and other
police agencies;
(h) transmittal letter to the NBI, including the report of the investigation conducted by
Superintendent Rodolfo C. Sison, Regional Deputy Director, NCRC;
(i) The names of NBI officials/agents composing the Task Force Jecares, including their
respective positions and duties;
(j) Statements made by other persons in connection with the crime charged.
The motion was granted by the DOJ Panel and the NBI submitted photocopies of the
documents. It alleged it lost the original of the April 28, 1995 sworn statement of Alfaro.
This compelled petitioner Webb to file Civil Case No. 951099 in the Regional Trial Court
(RTC) of Makati, Br. 63, for the purpose, among others, of obtaining the original of said
sworn statement. He succeeded, for in the course of its proceedings, Atty. Arturo L.
Mercader, Jr., produced a copy of said original in compliance with a subpoena duces
tecum. The original was then submitted by petitioner Webb to the DOJ Panel together with
his other evidence. It appears, however, that petitioner Webb failed to obtain from the NBI
the copy of the Federal Bureau of Investigation (FBI) Report despite his request for its
production.
Petitioner Webb claimed during the preliminary investigation that he did not commit the
crime at bar as he went to the United States on March 1, 1991 and returned to the
Philippines on October 27, 1992.
12
His alibi was corroborated by Honesto Aragon, Lecinia
Edrosolano, Sylvia Climaco, Gina Roque, Sonia Rodriguez, Edgardo Venture and Pamela
Francisco.
13
To further support his defense, he submitted documentary evidence that he
bought a bicycle and a 1986 Toyota car while in the United States on said dates
14
and that
he was issued by the State of California Driver's License No. A8818707 on June 14,
1991.
15
Petitioner Webb likewise submitted the letter dated July 25, 1995 of Mr. Robert
Heafner, Legal Attache of the US Embassy, citing certain records tending to confirm,
among others, his arrival at San Francisco, California on March 9, 1991 as a passenger in
United Airlines Flight No. 808.
The other respondents - Hospicio "Pyke" Fernandez, Michael Gatchalian, Antonio "Tony
Boy" Lejano, Peter Estrada, Miguel Rodriguez and Gerardo Biong - submitted sworn
statements, responses, and a motion to dismiss denying their complicity in the rape-killing
of the Vizcondes.
16
Only the respondents Joey Filart and Artemio "Dong" Ventura failed to
file their counter-affidavits though they were served with subpoena in their last known
address.
17
In his sworn statement, petitioner Gatchalian alleged that from 11 o'clock in the
evening of June 29, 1991 until 3 o'clock in the morning of the following day, he was at the
residence of his friends, Carlos and Andrew Syyap, at New Alabang Village, Muntinlupa
watching video tapes. He claimed that his co-petitioner Lejano was with him.
On August 8, 1995, the DOJ Panel issued a 26-page Resolution "finding probable cause to
hold respondents for trial" and recommending that an Information for rape with homicide
be filed against petitioners and their co-respondents,
18
On the same date, it filed the
corresponding Information
19
against petitioners and their co-accused with the Regional
Trial Court of Paraaque. The case was docketed as Criminal Case No. 95-404 and raffled
to Branch 258 presided by respondent judge Zosimo V. Escano. It was, however, the
respondent judge Raul de Leon, pairing judge of Judge Escano, who issued the warrants of
arrest against the petitioners. On August 11, 1995, Judge Escano voluntarily inhibited
himself from the case to avoid any suspicion about his impartiality considering his
employment with the NBI before his appointment to the bench. The case was re-raffled to
Branch 274, presided by Judge Amelita Tolentino who issued new warrants of arrest
against the petitioners and their co-accused. On August 11, 1995, petitioner Webb
voluntarily surrendered to the police authorities at Camp Ricardo Papa Sr., in Bicutan,
Taguig. Petitioners Gatchalian and Lejano likewise gave themselves up to the authorities
after filing their petitions before us.
In their petitions at bar, petitioners contend: (1) respondent Judges de Leon and Tolentino
gravely abused their discretion when they failed to conduct a preliminary examination
before issuing warrants of arrest against them: (2) the DOJ Panel likewise gravely abused
its discretion in holding that there is probable cause to charge them with the crime of rape
with homicide; (3) the DOJ Panel denied them their constitutional right to due process
during their preliminary investigation; and (4) the DOJ Panel unlawfully intruded into
judicial prerogative when it failed to charge Jessica Alfaro in the Information as an
accused.
We find the petitions bereft of merit.
I
Petitioners fault the DOJ Panel for its finding of probable cause. They insist that the May
22, 1995 sworn statement of Jessica Alfaro is inherently weak and uncorroborated. They
hammer on alleged material inconsistencies between her April 28, 1995 and May 22, 1995
sworn statements. They assail her credibility for her misdescription of petitioner Webb's
Criminal Procedure - Rule 112| Page 6 of 80

hair as semi-blonde. They also criticize the procedure followed by the DOJ Panel when it
did not examine witnesses to clarify the alleged incredulities and inconsistencies in the
sworn statements of the witnesses for the NBI.
We start with a restatement of the purpose of a preliminary investigation. Section 1 of Rule
112 provides that a preliminary investigation should determine " . . . whether there is a
sufficient ground to engender a well-grounded belief that a crime cognizable by the
Regional Trial Court has been committed and that the respondent is probably guilty
thereof, and should be held for trial." Section 3 of the same Rule outlines the procedure in
conducting a preliminary investigation, thus:
Sec. 3. Procedure. - Except as provided for in Section 7 hereof, no complaint or
information for an offense cognizable by the Regional Trial Court shall be filed without a
preliminary investigation having been first conducted in the following manner:
(a) The complaint shall state the known address of the respondent and be accompanied by
affidavits of the complainant and his witnesses as well as other supporting documents, in
such number of copies as there are respondents, plus two (2) copies for the official file. The
said affidavits shall be sworn to before any fiscal, state prosecutor or government official
authorized to administer oath, or, in their absence or unavailability, a notary public, who
must certify that he personally examined the affiants and that he is satisfied that they
voluntarily executed and understood their affidavits.
(b) Within ten (10) days after the filing of the complaint, the investigating officer shall
either dismiss the same if he finds no ground to continue with the inquiry, or issue a
subpoena to the respondent, attaching thereto a copy of the complaint, affidavits and other
supporting documents. Within ten (10) days from receipt thereof, the respondent shall
submit counter-affidavits and other supporting documents. He shall have the right to
examine all other evidence submitted by the complainant.
(c) Such counter-affidavits and other supporting evidence submitted by the respondent
shall also be sworn to and certified as prescribed in paragraph (a) hereof and copies thereof
shall be furnished by him to the complainant.
(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-
affidavits within the ten (10) day period, the investigating officer shall base his resolution
on the evidence presented by the complainant.
(e) If the investigating officer believes that there are matters to be clarified, he may set a
hearing to propound clarificatory questions to the parties or their witnesses, during which
the parties shall be afforded an opportunity to be present but without the right to examine
or cross-examine. If the parties so desire, they may submit questions to the investigating
officer which the latter may propound to the parties or witnesses concerned.
(f) Thereafter, the investigation shall be deemed concluded, and the investigating officer
shall resolve the case within ten (10) days therefrom. Upon the evidence thus adduced, the
investigating officer shall determine whether or not there is sufficient ground to hold the
respondent for trial.
Section 4 of Rule 112 then directs that "if the investigating fiscal finds cause to hold the
respondent for trial, he shall prepare the resolution and corresponding information. He shall
certify under oath that he, or as shown by the record, an authorized officer, has personally
examined the complainant and his witnesses, that there is reasonable ground to believe that
a crime has been committed and that the accused is probably guilty thereof . . ."
The need to find probable cause is dictated by the Bill of Rights which protects "the right
of the people to be secure in their persons . . . against unreasonable searches and seizures of
whatever nature . . ."
20
An arrest without a probable cause is an unreasonable seizure of a
person, and violates the privacy of persons which ought not to be intruded by the
State.
21
Probable cause to warrant arrest is not an opaque concept in our jurisdiction.
Continuing accretions of case law reiterate that they are facts and circumstances which
would lead a reasonably discreet and prudent man to believe that an offense has been
committed by the person sought to be arrested.
22
Other jurisdictions utilize the term man of
reasonable caution 23 or the term ordinarily prudent and cautious man.
24
The terms are
legally synonymous and their reference is not to a person with training in the law such as a
prosecutor or a judge but to the average man on the street.
25
It ought to be emphasized that
in determining probable cause, the average man weighs facts and circumstances without
resorting to the calibrations of our technical rules of evidence of which his knowledge is
nil. Rather, he relies on the calculus of common sense of which all reasonable men have an
abundance.
Applying these basic norms, we are not prepared to rule that the DOJ Panel gravely abused
its discretion when it found probable cause against the petitioners. Petitioners belittle the
truthfulness of Alfaro on two (2) grounds: (a) she allegedly erroneously described
petitioner Webb's hair as semi-blond and (b) she committed material inconsistencies in her
two (2) sworn statement, thus:
26

xxx xxx xxx
To illustrate, the following are some examples of inconsistencies in the two sworn
statements of Alfaro:
On whether Alfaro knew Carmela before the incident in question
Criminal Procedure - Rule 112| Page 7 of 80

First Affidavit: She had NOT met Carmela before June 29, 1991.
Second Affidavit: "I met her in a party sometime in February, 1991."
On whether Alfaro saw the dead bodies
First Affidavit: She did not see the three dead persons on that night. She just said "on the
following day I read in the newspaper that there were three persons who were killed . . ."
Second Affidavit: "I peeped through the first door on the left. I saw two bodies on top of
the bed, bloodied, and in the floor, I saw Hubert on top of Carmela."
On the alleged rape of Carmela Vizconde
First Affidavit: She did not see the act of rape.
Second Affidavit: She saw Hubert Webb "with bare buttocks, on top of Carmela and
pumping, her mouth gagged and she was moaning and I saw tears on her eyes."
On how Webb, Lejano, and Ventura entered the Vizconde house
First Affidavit: "by jumping over the fence, which was only a little more than a meter
high."
Second Affidavit: They "entered the gate which was already open."
On whether Alfaro entered the Vizconde house
First Affidavit: She never entered the house.
Second Affidavit: "I proceeded to the iron grill gate leading to the dirty kitchen."
In its Resolution, the DOJ Panel ruled that these alleged misdescription and inconsistencies
did not erode the credibility of Alfaro. We quote the pertinent ruling, viz.:
27

xxx xxx xxx
As regards the admissibility of Alfaro's statements, granting for purposes of argument
merely that she is a co-conspirator, it is well to note that confessions of a co-conspirator
may be taken as evidence to show the probability of the co-conspirator's participation in the
commission of the crime (see People vs. Lumahang, 94 Phil. 1084).
Furthermore, it is a well-established doctrine that conspiracy need not be proved by direct
evidence of prior agreement to commit the crime. Indeed, "only rarely would such a prior
agreement be demonstrable since, in the nature of things, criminal undertakings are only
rarely documented by agreements in writing. Thus, conspiracy may be inferred from the
conduct of the accused before, during and after the commission of the crime, showing that
the several accused had acted in concert or in unison with each other, evincing a common
purpose or design." (Angelo vs. Court of Appeals, 210 SCRA 402 [1992], citations
omitted; People vs. Molleda, 86 SCRA 699).
Neither can we discredit Alfaro merely because of the inconsistencies in her two sworn
statements. In Angelo, the Court refused to discredit the testimony of a witness accusing
therein petitioner for the slaying of one Gaviano Samaniego even though said witness
failed to name Angelo in his affidavit which was executed five (5) months earlier.
Granting, the Court continued, that a part of the witness' testimony is untrue, such
circumstance is not sufficient to discredit the entire testimony of the witness.
On August 7, 1995, another counsel for respondent Webb submitted his memorandum
suggesting that the instant complaint "should not be decided within the month to give time
to the NBI to coordinate with the FBI on the latter's inquiry into the whereabouts of Hubert
Webb . . . and to check on our U.S.-based witnesses."
In said memorandum, counsel for respondent Webb calls for the application of the
maxim falsus in uno, falsus in omnibus arising from the inconsistencies of Alfaro's
statements, among others. This is untenable. As held in Angelo:
There is no rule of law which prohibits a court from crediting part of the testimony of a
witness as worthy of belief and from simultaneously rejecting other parts which the court
may find incredible or dubious. The maxim falsus in uno, falsus in omnibus is not a rule of
law, let alone a general rule of law which is universally applicable. It is not a legal
presumption either. It is merely a latinism describing the conclusion reached by a court in a
particular case after ascribing to the evidence such weight or lack of weight that the court
deemed proper.
In the case before us, complainant reasoned out that Alfaro was then having reservations
when she first executed the first statement and held back vital information due to her
natural reaction of mistrust. This being so, the panel believes that the inconsistencies in
Alfaro's two sworn statements have been sufficiently explained especially specially so
where there is no showing that the inconsistencies were deliberately made to distort the
truth. Consequently, the probative value of Alfaro's testimony deserves full faith and credit.
Criminal Procedure - Rule 112| Page 8 of 80

As it has been often noted, ex parte statements are generally incomplete because they are
usually executed when the affiant's state of mind does not give her sufficient and fair
opportunity to comprehend the import of her statement and to narrate in full the incidents
which transpired (People vs. Sarellana, 233 SCRA 31 [1994]; Angelo vs. Court of
Appeals, supra). In the case at bar, there is no dispute that a crime has been committed and
what is clear before us is that the totality of the evidence submitted by the complainant
indicate aprima facie case that respondents conspired in the perpetration of the imputed
offense.
We note that the May 22, 1995 sworn statement of Alfaro was given with the assistance of
counsel
28
and consists of six (6) pages, in single space reciting in rich details how the
crime was planned and then executed by the petitioners. In addition, the DOJ Panel
evaluated the supporting sworn statements of Nerissa Rosales and Mila Gaviola, former
housemaids of the Webbs, Carlos J. Cristobal, a passenger in United Airlines Flight No.
808 and Lolita Birrer, a paramour of Gerardo Biong. The Panel assayed their statements as
follows:
29

xxx xxx xxx
According to Nerissa E. Rosales, a former housemaid of the Webb family, on June 29,
1991, between 7:00 o'clock and 8:00 o'clock in the evening, Hubert was at home inside his
room with two male visitors. She knew it because she and her co-housemaid, Loany, were
instructed by Hubert to bring them three glasses of juice. It was the last time she saw
Hubert and was later told by then Congressman Webb that Hubert was in the United States.
While Mila S. Gaviola, another former housemaid of the Webb family and who served as a
laundry woman, claims, aside from corroborating the statement of Nerissa Rosales, that on
June 30, 1991, she woke up at around 4:00 in the morning and as what she used to do, she
entered the rooms of the Webbs to get their clothes to be washed. As a matter of fact, in
that early morning, she entered Hubert's room and saw Hubert, who was only wearing his
pants, already awake and smoking while he was sitting on his bed. She picked up Hubert's
scattered clothes and brought them together with the clothes of the other members of the
family to the laundry area. After taking her breakfast, she began washing the clothes of the
Webbs. As she was washing the clothes of Hubert Webb, she noticed fresh bloodstains in
his shirt. After she finished the laundry, she went to the servant's quarters. But feeling
uneasy, she decided to go up to the stockroom near Hubert's room to see what he was
doing. In the said stockroom, there is a small door going to Hubert's room and in that door
there is a small opening where she used to see Hubert and his friends sniffing on
something. She observed Hubert was quite irritated, uneasy, and walked to and from inside
his room.
On that day, she noticed Hubert left the house at around 1:00 in the afternoon and came
back at around 4:00 in the same afternoon and went inside his room using the secret door
of the house. It was the last time that she saw Hubert until she left the Webb family.
On the other hand, Carlos J. Cristobal alleged that on March 9, 1991, at about 10:00 in the
morning, he was at the Ninoy Aquino International Airport as he was then scheduled to
take the United Airlines Flight No. 808 at 2:00 in the afternoon for New York. At the
airport's lobby, he saw then Congressman Freddie Webb with a male companion. He
greeted him and Webb answered: "Mabuti naman, at ito, ihahatid ko ang anak ko
papuntang Florida." He knew Freddie Webb because he often watched him then in a
television show "Chicks to Chicks." He observed that the man whom Freddie Webb
referred to as his son, was of the same height as Freddie. The son referred to has fair
complexion with no distinguishing marks on his face. He (son of Webb) was then wearing
a striped white jacket. When he and his children were already inside the plane, he did not
see Freddie anymore, but he noticed his son was seated at the front portion of the economy
class. He never noticed Freddie Webb's son upon their arrival in San Francisco. He claims
that, while watching the television program "DONG PUNO LIVE" lately, he saw the wife
of Freddie Webb with her lawyer being interviewed, and when she described Hubert as
"moreno" and small built, with a height of five feet and seven inches tall, and who was the
one who left for United States on March 9, 1991, he nurtured doubts because such
description does not fit the physical traits of the son of Freddie, who left with him for
United States on the same flight and date.
Lolita Birrer, alleged that she know Gerardo Biong because she had an affair with him for
almost three (3) years and in fact, she had a child with him who is now four (4) years old.
Their relationship started in February, 1991 until she broke up with him in September
1993. She recalls that on June 29, 1991, at around 6:00 p.m., Biong invited her to play
mahjong at the canteen of a certain Aling Glo located at the back of the Paraaque
Municipal Hall.
At about 2:30, in the early morning of January 30, 1991, the radio operator of the
Paraaque police told Biong that he has a phone call. Before Biong went to the radio room,
she was instructed to take him over and after somebody won the game, she followed Biong
at the radio room where she overheard him uttering, "Ano?, Saan? Mahirap yan, Paano, o
sige, aantayin kita, O ano?, dilaw na taxi, o sige." When he put the phone down, Biong
told her, "Mayroon lang akong rerespondehan, ikaw muna ang maupo" and then, he went
outside the canteen apparently waiting for somebody. Twenty minutes later, a taxi, colored
yellow, arrived with a male passenger sitting at the backseat and parked near the canteen.
After it made some signals by blinking its headlight, Biong rode thereat at the front seat
beside the driver and then, they left. She was not able to recognize the male passenger
because the window of the taxi was tinted. Biong came back at around 7:00 of the same
morning and when he arrived, he immediately washed his hands and face, and took his
handkerchief from his pocket which he threw at the trash can. She asked him why he threw
Criminal Procedure - Rule 112| Page 9 of 80

his handkerchief and he answered, "Hmp . . . amoy tae." She inquired what happened in BF
Homes and he replied, "Putang inang mga batang iyon, pinahirapan nila ako."
Biong later invited her for breakfast, but they first went to his office where she observed
him doing something in his steel cabinet while he appeared to be uneasy. Moments later,
Galvan, another policeman of Paraaque, arrived and said, "Oy Biong, may tatlong patay
sa BF, imbestigahan mo" to which Biong answered, "Oo susunod na ako." Biong went to
the office of Capt. Don Bartolome who offered to accompany him and with whom she
asked permission to go with them. Before they proceeded to the place where the killings
happened, she asked Biong if he knew the exact address and the latter immediately
responded, "Alam ko na yon." She was surprised because Galvan never told him the place
of the incident.
As soon as they arrived at the Vizconde's residence, Biong instructed the housemaids to
contact the victim's relatives, while the security guard fetched the barangay chairman and
the president of the Homeowners Association. When all these persons were already in the
house, Biong started recording the wounds of the victim. Inside the master's bedroom, she
saw Biong took a watch from the jewelry box. Because she could not tolerate the foul odor,
she and Capt. Bartolome went out of the room and proceeded to the dining area. On top of
the dining table, she saw the scattered contents of a shoulder bag. Moments later, Biong
came out from the room and proceeded to the front door to remove the chain lock; asked
the keys from the housemaid and it was only then that the main door was opened. Biong
noticed a stone in front of the broken glass of the door and requested Capt. Bartolome to go
inside the servant's quarters as he doubted the housemaids' claim that they heard nothing
unusual. Using the handle of his gun, Biong broke the remaining glass of the door panel.
Bartolome then came out of the room and told Biong that he can hear the sound of the glass
being broken. At the garage, Biong also noticed same marks on the hood of the car.
On the following day, at around 12:00 noon, Biong arrived in her house together with the
Vizconde housemaids. When Biong was preparing to take a bath, she saw him remove
from his pocket the things she also saw from Vizconde's residence, to wit: calling cards,
driver's license, ATM card, a crossed check worth P80,000.00, earrings, a ring, bracelet,
necklace, and the watch he took from the jewelry box inside the room of the Vizcondes.
These jewelry items were later pawned by Biong for P20,000.00 at a pawnshop in front of
Chow-Chow restaurant in Santos Avenue, Paraaque. The next day, she saw Biong took
from his locker at the Paraaque Police Station an imported brown leather jacket, which the
latter claimed to have been given to him by the person who called him up in the early
morning of June 30, 1991.
Since then, Biong has been wearing said jacket until they broke up sometime in 1993. She
observed that Biong seemed not interested in pursuing the investigation of the Vizconde
case. In fact, when Biong and this group picked up Mike Gatchalian and brought him to the
Paraaque Police Station, she was surprised that Biong halted the investigation when
Gatchalian was profusely sweating while being interrogated. After the father of Gatchalian
talked to Colonel Pureza, the latter called up and instructed Biong to bring Gatchalian to
him (Colonel Pureza) and that was the last thing she remembered regarding this case.
The DOJ Panel then weighed these inculpatory evidence against the exculpatory evidence
of petitioners. It ruled:
30

xxx xxx xxx
The voluminous number of exhibits submitted by respondent Webb to support his defense
of denial and alibi notwithstanding, the panel, after a careful and thorough evaluation of the
records, believes that they cannot outweigh the evidence submitted by the complainant.
Alibi cannot prevail over the positive identification made by a prosecution witness. Verily,
alibi deserves scant consideration in the face of positive identification especially so where
the claim of alibi is supported mainly by friends and relatives (People vs. Apolonia, 235
SCRA 124 [1994]; People vs. Lucas, 181 SCRA 316 and a long line of cases).
Similarly, denial is a self-serving negative which cannot be given greater evidentiary
weight than the declaration of a credible witness who testified on affirmative matters
(People vs. Carizo, 233 SCRA 687 [1994]). Indeed, denial, like alibi, is weak and becomes
even more weaker when arrayed against the positive identification by the witness for the
prosecution (People vs. Onpaid, 233 SCRA 62 [1994]).
Surprisingly, Gatchalian's defense of alibi was not corroborated by Lejano, whom he
claimed was with him watching video tapes at the Syyap residence. Other than claiming
that he "was not and could not have been at or near the area of the Vizconde residence at
the time of the alleged commission of the crime," respondent Lejano proffered no evidence
to substantiate his claim of alibi.
xxx xxx xxx
On the other hand, respondent Webb seeks to enhance the acceptability of his alibi in the
form of documents tending to show that he was thousands of miles away when the incident
occurred. We have carefully deliberated and argued on the evidence submitted by
respondent Webb in support of his absence from the country since March 9, 1991 to
October 26, 1992 and found the same wanting to exonerate him of the offense charged. The
material dates in this case are June 29 and 30, 1991. While respondent Webb may have
submitted proof tending to show that he was issued a California driver's license on June 14,
1991, there is no showing that he could not have been in the country on the dates above
mentioned. Neither do we find merit in the allegation that respondent Webb personally
bought a bicycle on June 30, 1991 in California in view of his positive identification by
Alfaro and the two (2) househelps of the Webb family who testified that he was here in the
Criminal Procedure - Rule 112| Page 10 of 80

country on said dates. Additionally, the issuance of receipt evidencing the purchase of a
bicycle in California is no conclusive proof that the name appearing thereon was the actual
buyer of the merchandise.
Given these conflicting pieces of evidence of the NBI and the petitioners, we hold that the
DOJ Panel did not gravely abuse its discretion when it found probable cause against the
petitioners. A finding of probable cause needs only to rest on evidence showing that more
likely than not a crime has been committed and was committed by the suspects. Probable
cause need not be based on clear and convincing evidence of guilt, neither on evidence
establishing guilt beyond reasonable doubt and definitely, not on evidence establishing
absolute certainty of guilt. As well put in Brinegar v. United States,
31
while probable cause
demands more than "bare suspicion," it requires "less than evidence which would justify . .
. conviction." A finding of probable cause merely binds over the suspect to stand trial. It is
not a pronouncement of guilt.
Considering the low quantum and quality of evidence needed to support a finding of
probable cause, we also hold that the DOJ Panel did not, gravely abuse its discretion in
refusing to call the NBI witnesses for clarificatory questions. The decision to call witnesses
for clarificatory questions is addressed to the sound discretion of the investigator and the
investigator alone. If the evidence on hand already yields a probable cause, the investigator
need not hold a clarificatory hearing. To repeat, probable cause merely implies probability
of guilt and should be determined in a summary manner. Preliminary investigation is not a
part of trial and it is only in a trial where an accused can demand the full exercise of his
rights, such as the right to confront and cross-examine his accusers to establish his
innocence. In the case at bar, the DOJ Panel correctly adjudged that enough evidence had
been adduced to establish probable cause and clarificatory hearing was unnecessary.
II
We now come to the charge of petitioners that respondent Judge Raul de Leon and, later,
respondent Judge Amelita Tolentino issued warrants of arrest against them without
conducting the required preliminary examination. Petitioners support their stance by
highlighting the following facts: (1) the issuance of warrants of arrest in a matter of few
hours; (2) the failure of said judges to issue orders of arrest; (3) the records submitted to the
trial court were incomplete and insufficient from which to base a finding of probable cause;
and (4) that even Gerardo Biong who was included in the Information as a mere accessory
had a "NO BAIL" recommendation by the DOJ Panel. Petitioners postulate that it was
impossible to conduct a "searching examination of witnesses and evaluation of the
documents" on the part of said judges.
The issuance of a warrant of arrest interferes with individual liberty and is regulated by no
less than the fundamental law of the land. Section 2 of Article III of the Constitution
provides:
Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue except upon probable
cause to be determined personally by the judge after examination under oath or affirmation
of the complainant and the witnesses he may produce and particularly describing the place
to be searched and the persons or things to be seized.
The aforequoted provision deals with the requirements of probable cause both with respect
to issuance of warrants of arrest or search warrants. The similarities and differences of their
requirements ought to be educational. Some of them are pointed out by Professors LaFave
and Israel, thus:
32
"It is generally assumed that the same quantum of evidence is required
whether one is concerned with probable cause to arrest or probable cause to search. But
each requires a showing of probabilities as to somewhat different facts and circumstances,
and thus one can exist without the other. In search cases, two conclusions must be
supported by substantial evidence: that the items sought are in fact seizable by virtue of
being connected with criminal activity, and that the items will be found in the place to be
searched. It is not also necessary that a particular person be implicated. By comparison, in
arrest cases there must be probable cause that a crime has been committed and that the
person to be arrested committed it, which of course can exist without any showing that
evidence of the crime will be found at premises under that person's control." Worthy to
note, our Rules of Court do not provide for a similar procedure to be followed in the
issuance of warrants of arrest and search warrants. With respect to warrants of arrest,
section 6 of Rule 112 simply provides that "upon filing of an information, the Regional
Trial Court may issue a warrant for the arrest of the accused." In contrast, the procedure to
be followed in issuing search warrants is more defined. Thus, Sections 3, 4 and 5 of Rule
126 provide:
Sec. 3. Requisites for issuing search warrant. - A search warrant shall not issue but upon
probable cause in connection with one specific offense to be determined personally by the
judge after examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched and the things to be
seized.
Sec. 4. Examination of complainant; record. - The judge must, before issuing the warrant,
personally examine in the form of searching questions and answers, in writing and under
oath the complainant and any witnesses he may produce on facts personally known to them
and attach to the record their sworn statements together with any affidavits submitted.
Sec. 5. Issuance and form of search warrant. - If the judge is thereupon satisfied of the
facts upon which the application is based, or that there is probable cause to believe that
they exist, he must issue the warrant, which must be substantially in the form prescribed by
these Rules.
Criminal Procedure - Rule 112| Page 11 of 80

We discussed the difference in the Procedure of issuing warrants of arrest and search
warrants in Soliven vs. Makasiar,
33
thus:
The second issue, raised by Beltran, calls for an interpretation of the constitutional
provision on the issuance of warrants of arrest. The pertinent provision reads:
Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized.
The addition of the word "personally" after the word "determined" and the deletion of the
grant of authority by the 1973 Constitution to issue warrants to "other responsible officers
as may be authorized by law," has apparently convinced petitioner Beltran that the
Constitution now requires the judge to personally examine the complainant and his
witnesses in his determination of probable cause for the issuance of warrants of arrest. This
is not an accurate interpretation.
What the Constitution underscores is the exclusive and personal responsibility of the
issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of
the existence of probable cause for the issuance of a warrant of arrest, the judge is not
required to personally examine the complainant and his witnesses. Following established
doctrine and procedure, he shall: (1) personally evaluate the report and the documents
submitted by the fiscal regarding the existence of probable cause and, on the basis thereof,
issue a warrant; or (2) if on the basis thereof he finds no probable cause, he may disregard
the fiscal's report and require the submission of supporting affidavits of witnesses to aid
him in arriving at a conclusions as to the existence of probable cause.
Sound policy dictates this procedure, otherwise judges would be unduly laden with the
preliminary examination and investigation of criminal complaints instead of concentrating
on hearing and deciding cases filed before their courts.
Clearly then, the Constitution, the Rules of Court, and our case law
34
repudiate the
submission of petitioners that respondent judges should have conducted "searching
examination of witnesses" before issuing warrants of arrest against them. They also reject
petitioners' contention that a judge must first issue an order of arrest before issuing a
warrant of arrest. There is no law or rule requiring the issuance of an Order of Arrest prior
to a warrant of arrest.
In the case at bar, the DOJ Panel submitted to the trial court its 26-page report, the two (2)
sworn statements of Alfaro and the sworn statements of Carlos Cristobal and Lolita
Birrer
35
as well as the counter-affidavits of the petitioners. Apparently, the painstaking
recital and analysis of the parties' evidence made in the DOJ Panel Report satisfied both
judges that there is probable cause to issue warrants of arrest against petitioners. Again, we
stress that before issuing warrants of arrest, judges merely determine personally the
probability, not the certainty of guilt of an accused. In doing so, judges do not conduct a de
novo hearing to determine the existence of probable cause. They just personally review the
initial determination of the prosecutor finding a probable cause to see if it is supported
by substantial evidence. The sufficiency of the review process cannot be measured by
merely counting minutes and hours. The fact that it took the respondent judges a few hours
to review and affirm the probable cause determination of the DOJ Panel does not mean
they made no personal evaluation of the evidence attached to the records of the case.
36

Petitioners' reliance on the case of Allado vs. Diokno
37
is misplaced. Our Allado ruling is
predicated on the utter failure of the evidence to show the existence of probable cause. Not
even the corpus delicti of the crime was established by the evidence of the prosecution in
that case. Given the clear insufficiency of the evidence on record, we stressed the necessity
for the trial judge to make a further personal examination of the complainant and his
witnesses to reach a correct assessment of the existence or non-existence of probable cause
before issuing warrants of arrest against the accused. The case at bar, however, rests on a
different factual setting. As priorly discussed, the various types of evidence extant in the
records of the case provide substantial basis for a finding of probable cause against the
petitioner. The corpus delictiof the crime is a given fact. There is an eyewitness account of
the imputed crime given by Alfaro. The alibi defense of petitioner Webb is also disputed
by sworn statements of their former maids. It was therefore unnecessary for the respondent
judges to take the further step of examining ex parte the complainant and their witnesses
with searching questions.
Petitioners also complain about the denial of their constitutional right to due process and
violation of their right to an impartial investigation. They decry their alleged hasty and
malicious prosecution by the NBI and the DOJ Panel. They also assail the prejudicial
publicity that attended their preliminary investigation.
We reject these contentions. The records will show that the DOJ Panel did not conduct the
preliminary investigation with indecent haste. Petitioners were given fair opportunity to
prove lack of probable cause against them. The fairness of this opportunity is well stressed
in the Consolidated Comment of the Solicitor General, viz.:
Again, there is no merit in this contention. Petitioners were afforded all the opportunities to
be heard. Petitioner Webb actively participated in the preliminary investigation by
appearing in the initial hearing held on June 30, 1995 and in the second hearing on July 14,
1995; and by filing a "Motion for Production and Examination of Evidence and
Criminal Procedure - Rule 112| Page 12 of 80

Documents" on June 27, 1995 (p. 4, Petition), a "Reply to the compliance and
Comment/Manifestation to the Motion for Production and Examination of Evidence" on
July 5, 1995 (p. 6, Petition), a "Comment and Manifestation" on July 7, 1995 (p. 6,
Petition), his "Counter-Affidavit" on July 14, 1995 (pp. 6-7, Petition) and a "Motion to
Resolve" on August 1, 1995. Numerous letter-requests were also sent by the petitioner
Webb's counsel to the DOJ Panel requesting the latter to furnish him a copy of the reports
prepared by the FBI concerning the petitioner's whereabouts during the material period
(Annexes "L", "L-1" and "L-2" of the Supplemental Petition dated August 14, 1995). In
fact, not satisfied with the decision of the DOJ Panel not to issue subpoena duces tecum to
Atty. Arturo L. Mercader, Jr., petitioner Webb filed a "Petition for Injunction, Certiorari,
Prohibition and Mandamus" with the Regional Trial Court, Branch 63 of Makati in order
to compel said Atty. Mercader, Jr. to produce the first sworn statement of Alfaro for
submission to the DOJ Panel. (p. 4, Petition) The said court dismissed the petition after
Mercader produced and submitted to the DOJ Panel the first sworn statement of Alfaro,
without ruling on the admissibility and credence of the two (2) conflicting and inconsistent
sworn statements of the principal witness, Alfaro. (Attached hereto is a copy of the order of
Judge Ruben A. Mendiola, RTC-Makati, Branch 63 dated July 28, 1995) marked as Annex
"F."
It must also be pointed out that despite the declaration by the DOJ Panel that the
preliminary investigation was to be terminated after the hearing held on July 14, 1995, the
panel continued to conduct further proceedings, e.g. comparison of the photo-copies of the
submitted documents with the originals on July 17, 1995. (p. 7, Petition) The panel even
entertained the "Response" submitted by accused Miguel Rodriguez on July 18, 1995. (p.
17 Resolution) In addition to these, the panel even announced that any party may submit
additional evidence before the resolution of the case. (p. 8, Petition) From the time the
panel declared the termination of the preliminary investigation on July 14, 1995, twenty-
seven (27) days elapsed before the resolution was promulgated, and the information
eventually filed in the Regional Trial Court of Paraaque on August 10, 1995. This
notwithstanding the directive of Section 3(f) Rule 112 of the Revised Rules of Court that
the investigating officer shall resolve the case within ten (10) days from the termination of
the preliminary investigation. The DOJ Panel precisely allowed the parties to adduce more
evidence in their behalf and for the panel to study the evidence submitted more fully. This
directly disputes the allegation of the petitioners that the resolution was done with indecent
haste in violation of the rights of the petitioners. During the period of twenty-seven (27)
days, the petitioners were free to adduce and present additional evidence before the DOJ
Panel.
Verily, petitioners cannot now assert that they were denied due process during the conduct
of the preliminary investigation simply because the DOJ Panel promulgated the adverse
resolution and filed the Information in court against them.
Petitioners cannot also assail as premature the filing of the Information in court against
them for rape with homicide on the ground that they still have the right to appeal the
adverse resolution of the DOJ Panel to the Secretary of Justice. The filing of said
Information is in accord with Department of Justice Order No. 223, series of 1993, dated
June 25, 1993. We quote its pertinent sections, viz.:
Sec. 4. Non-Appealable Cases; Exceptions. - No appeal may be taken from a resolution of
the Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor finding
probable cause except upon showing of manifest error or grave abuse of discretion.
Notwithstanding the showing of manifest error or grave abuse of discretion, no appeal
shall be entertained where the appellant had already been arraigned. If the appellant is
arraigned during the pendency of the appeal, said appeal shall be dismissed motu propio by
the Secretary of Justice.
An appeal/motion for reinvestigation from a resolution finding probable cause, however,
shall not hold the filing of the information in court.
Sec. 2. When to appeal. - The appeal must be filed within a period of fifteen (15) days from
receipt of the questioned resolution by the party or his counsel. The period shall be
interrupted only by the filing of a motion for reconsideration within ten (10) days from
receipt of the resolution and shall continue to run from the time the resolution denying the
motion shall have been received by the movant or his counsel. (Emphasis supplied)
Without doubt then, the said DOJ Order No. 223 allows the filing of an Information in
court after the consummation of the preliminary investigation even if the accused can still
exercise the right to seek a review of the prosecutor's recommendation with the Secretary
of Justice.
Next, petitioners fault the DOJ Panel for not including Alfaro in the Information
considering her alleged conspiratorial participation in the crime of rape with homicide. The
non-inclusion of Alfaro is anchored on Republic Act
No. 6981, entitled "An Act Providing For A Witness Protection, Security And Benefit
Program And For Other Purposes" enacted on April 24, 1991. Alfaro qualified under its
Section 10, which provides:
xxx xxx xxx
Sec. 10. State Witness. - Any person who has participated in the commission of a crime and
desires to a witness for the State, can apply and, if qualified as determined in this Act and
by the Department, shall be admitted into the Program whenever the following
circumstances are present:
Criminal Procedure - Rule 112| Page 13 of 80

(a) the offense in which his testimony will be used is a grave felony as defined under the
R.P.C. or its equivalent under special laws;
(b) there is absolute necessity for his testimony;
(c) there is no other direct evidence available for the proper prosecution of the offense
committed;
(d) his testimony can be substantially corroborated on its material points;
(e) he does not appear to be most guilty; and
(f) he has not at anytime been convicted of any crime involving moral turpitude.
An accused discharged from an information or criminal complaint by the court in order that
he may be a State Witness pursuant to Sections 9 and 10 of Rule 119 of the Revised Rules
of Court may upon his petition be admitted to the Program if he complies with the other
requirements of this Act. Nothing in this Act shall prevent the discharge of an accused so
that he can be used as a Witness under Rule 119 of the Revised Rules of Court.
Upon qualification of Alfaro to the program, Section 12 of the said law mandates her non-
inclusion in the criminal Complaint or Information, thus:
xxx xxx xxx
Sec. 12. Effect of Admission of a State Witness into the Program. - The certification of
admission into the Program by the Department shall be given full faith and credit by the
provincial or city prosecutor who is required NOT TO INCLUDE THE WITNESS IN THE
CRIMINAL COMPLAINT OR INFORMATION and if included therein, to petition the court
for his discharge in order that he can be utilized as a State Witness. The court shall order
the discharge and exclusion of the said accused from the information.
Admission into the Program shall entitle such State Witness to immunity from criminal
prosecution for the offense or offenses in which his testimony will be given or used and all
the rights and benefits provided under Section 8 hereof.
The validity of these provisions is challenged by petitioner Webb. It is urged that they
constitute ". . . an intrusion into judicial prerogative for it is only the court which has the
power under the Rules on Criminal Procedure to discharge an accused as a state witness."
The argument is based on Section 9, Rule 119
38
which gives the court the prerogative to
approve the discharge of an accused to be a state witness. Petitioner's argument lacks
appeal for it lies on the faulty assumption that the decision whom to prosecute is a judicial
function, the sole prerogative of courts and beyond executive and legislative interference.
In truth, the prosecution of crimes appertains to the executive department of government
whose principal power and responsibility is to see that our laws are faithfully executed. A
necessary component of this power to execute our laws is the right to prosecute their
violators. The right to prosecute vests the prosecutor with a wide range of discretion - the
discretion of whether, what and whom to charge, the exercise of which depends on a
smorgasbord of factors which are best appreciated by prosecutors. We thus hold that it is
not constitutionally impermissible for Congress to enact R.A. No. 6981 vesting in the
Department of Justice the power to determine who can qualify as a witness in the program
and who shall be granted immunity from prosecution.
39
Section 9 of Rule 119 does not
support the proposition that the power to choose who shall be a state witness is an inherent
judicial prerogative. Under this provision, the court, is given the power to discharge a state
witness only because it has already acquired jurisdiction over the crime and the accused.
The discharge of an accused is part of the exercise of jurisdiction but is not a recognition of
an inherent judicial function. Moreover, the Rules of Court have never been interpreted to
be beyond change by legislation designed to improve the administration of our justice
system. R.A. No. 6981 is one of the much sought penal reform laws to help government in
its uphill fight against crime, one certain cause of which is the reticence of witnesses to
testify. The rationale for the law is well put by the Department of Justice, viz.: "Witnesses,
for fear of reprisal and economic dislocation, usually refuse to appear and testify in the
investigation/prosecution of criminal complaints/cases. Because of such refusal, criminal
complaints/cases have been dismissed for insufficiency and/or lack of evidence. For a more
effective administration of criminal justice, there was a necessity to pass a law protecting
witnesses and granting them certain rights and benefits to ensure their appearance in
investigative bodies/courts."
40
Petitioner Webb's challenge to the validity of R.A. No. 6981
cannot therefore succeed.
Further, petitioners charge the NBI with violating their right to discovery proceedings
during their preliminary investigation by suppressing the April 28, 1995 original copy of
the sworn statement of Alfaro and the FBI Report. The argument is novel in this
jurisdiction and as it urges an expansive reading of the rights of persons under preliminary
investigation it deserves serious consideration. To start with, our Rules on Criminal
Procedure do not expressly provide for discovery proceedings during the preliminary
investigation stage of a criminal proceeding.
41
Sections 10 and 11 of Rule 117 do provide
an accused the right to move for a bill of particulars and for production or inspection of
material evidence in possession of the prosecution.
42
But these provisions apply after the
filing of the Complaint or Information in court and the rights are accorded to the accused to
assist them to make an intelligent plea at arraignment and to prepare for trial.
43

This failure to provide discovery procedure during preliminary investigation does not,
however, negate its use by a person under investigation when indispensable to protect his
constitutional right to life, liberty and property. Preliminary investigation is not too early a
Criminal Procedure - Rule 112| Page 14 of 80

stage to guard against any significant erosion of the constitutional right to due process of a
potential accused. As aforediscussed, the object of a preliminary investigation is to
determine the probability that the suspect committed a crime. We hold that the finding of a
probable cause by itself subjects the suspect's life, liberty and property to real risk of loss
or diminution. In the case at bar, the risk to the liberty of petitioners cannot be understated
for they are charged with the crime of rape with homicide, a non-bailable offense when the
evidence of guilt is strong.
Attuned to the times, our Rules have discarded the pure inquisitorial system of preliminary
investigation. Instead, Rule 112 installed a quasi-judicial type of preliminary investigation
conducted by one whose high duty is to be fair and impartial.
44
As this Court emphasized
in Rolito Go vs. Court of Appeals,
45
"the right to have a preliminary investigation
conducted before being bound over for trial for a criminal offense, and hence formally at
risk of incarceration or some other penalty, is not a mere formal or technical right; it is a
substantive right." A preliminary investigation should therefore be scrupulously conducted
so that the constitutional right to liberty of a potential accused can be protected from any
material damage. We uphold the legal basis of the right of petitioners to demand from their
prosecutor, the NBI, the original copy of the April 28, 1995 sworn statement of Alfaro and
the FBI Report during their preliminary investigation considering their exculpatory
character, and hence, unquestionable materiality to the issue of their probable guilt. The
right is rooted on the constitutional protection of due process which we rule to be
operational even during the preliminary investigation of a potential accused. It is also
implicit in section (3) (a) of Rule 112 which requires during the preliminary investigation
the filing of a sworn complaint, which shall ". . . state the known address of the respondent
and be accompanied by affidavits of the complainant and his witnesses as well as other
supporting documents . . ."
In laying down this rule, the Court is not without enlightened precedents from other
jurisdictions. In the 1963 watershed case of Brady v. Maryland 46 the United States
Supreme Court held that "suppression of evidence favorable to an accused upon request
violates due process where the evidence is material to guilt or punishment, irrespective of
the good faith or bad faith of the prosecution." Its progeny is the 1935 case of Mooney
v. Holohan 47 which laid down the proposition that a prosecutor's intentional use of
perjured testimony to procure conviction violates due process. Thus, evolved jurisprudence
firming up the prosecutor's duty to disclose to the defense exculpatory evidence in its
possession.
48
The rationale is well put by Justice Brennan in Brady
49
- "society wins not
only when the guilty are convicted but when criminal trials are fair." Indeed, prosecutors
should not treat litigation like a game of poker where surprises can be sprung and where
gain by guile is not punished.
But given the right of petitioners to compel the NBI to disclose exculpatory evidence in
their favor, we are not prepared to rule that the initial non-production of the original sworn
statement of Alfaro dated April 28, 1995 could have resulted in the reasonable likelihood
that the DOJ Panel would not have found probable cause. To be sure, the NBI, on July 4,
1995, upon request of petitioners, submitted a photocopy of Alfaro's April 28, 1995 sworn
statement. It explained it cannot produce the original as it had been lost. Fortunately,
petitioners, on July 28, 1995, were able to obtain a copy of the original from Atty. Arturo
Mercader in the course of the proceedings in Civil Case No. 951099.
50
As petitioners
admit, the DOJ Panel accepted the original of Alfaro's April 28, 1995 sworn statement as a
part of their evidence.
51
Petitioners thus had the fair chance to explain to the DOJ Panel
then still conducting their preliminary investigation the exculpatory aspects of this sworn
statement. Unfortunately for petitioners, the DOJ Panel still found probable cause to charge
them despite the alleged material discrepancies between the first and second sworn
statements of Alfaro. For reasons we have expounded, this finding of probable cause
cannot be struck down as done with grave abuse of discretion.
52
On the other hand, the FBI
Report while corroborative of the alibi of petitioner Webb cannot by itself reverse the
probable cause finding of the DOJ Panel in light of the totality of evidence presented by the
NBI.
Finally, we come to the argument of petitioner that the DOJ Panel lost its impartiality due
to the prejudicial publicity waged in the press and broadcast media by the NBI.
Again, petitioners raise the effect of prejudicial publicity on their right to due process while
undergoing preliminary investigation. We find no procedural impediment to its early
invocation considering the substantial risk to their liberty while undergoing a preliminary
investigation.
In floating this issue, petitioners touch on some of the most problematic areas in
constitutional law where the conflicting demands of freedom of speech and of the press, the
public's right to information, and an accused's right to a fair and impartial trial collide and
compete for prioritization. The process of pinpointing where the balance should be struck
has divided men of learning as the balance keeps moving either on the side of liberty or on
the side of order as the tumult of the time and the welfare of the people dictate. The dance
of balance is a difficult act to follow.
In democratic settings, media coverage of trials of sensational cases cannot be avoided and
oftentimes, its excessiveness has been aggravated by kinetic developments in the
telecommunications industry. For sure, few cases can match the high volume and high
velocity of publicity that attended the preliminary investigation of the case at bar. Our daily
diet of facts and fiction about the case continues unabated even today. Commentators still
bombard the public with views not too many of which are sober and sublime. Indeed, even
the principal actors in the case - the NBI, the respondents, their lawyers and their
sympathizers - have participated in this media blitz. The possibility of media abuses and
their threat to a fair trial notwithstanding, criminal trials cannot be completely closed to the
press and the public. In the seminal case of Richmond Newspapers, Inc. v. Virginia,
53
it
was wisely held:
Criminal Procedure - Rule 112| Page 15 of 80

xxx xxx xxx
(a) The historical evidence of the evolution of the criminal trial in Anglo-American justice
demonstrates conclusively that at the time this Nation's organic laws were adopted,
criminal trials both here and in England had long been presumptively open, thus giving
assurance that the proceedings were conducted fairly to all concerned and discouraging
perjury, the misconduct of participants, or decisions based on secret bias or partiality. In
addition, the significant community therapeutic value of public trials was recognized: when
a shocking crime occurs, a community reaction of outrage and public protest often follows,
and thereafter the open processes of justice serve an important prophylactic purpose,
providing an outlet for community concern, hostility, and emotion. To work effectively, it
is important that society's criminal process "satisfy the appearance of justice," Offutt v.
United States, 348 US 11, 14, 99 L Ed 11, 75 S Ct 11, which can best be provided by
allowing people to observe such process. From this unbroken, uncontradicted history,
supported by reasons as valid today as in centuries past, it must be concluded that a
presumption of openness inheres in the very nature of a criminal trial under this Nation's
system of justice, Cf., e.g., Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct
1038.
(b) The freedoms of speech, press, and assembly, expressly guaranteed by the First
Amendment, share a common core purpose of assuring freedom of communication on
matters relating to the functioning of government. In guaranteeing freedoms such as those
of speech and press, the First Amendment can be read as protecting the right of everyone to
attend trials so as to give meaning to those explicit guarantees; the First Amendment right
to receive information and ideas means, in the context of trials, that the guarantees of
speech and press, standing alone, prohibit government from summarily closing courtroom
doors which had long been open to the public at the time the First Amendment was
adopted. Moreover, the right of assembly is also relevant, having been regarded not only as
an independent right but also as a catalyst to augment the free exercise of the other First
Amendment rights with which it was deliberately linked by
the draftsmen. A trial courtroom is a public place where the people generally - and
representatives of the media - have a right to be present, and where their presence
historically has been thought to enhance the integrity and quality of what takes place.
(c) Even though the Constitution contains no provision which by its terms guarantees to the
public the right to attend criminal trials, various fundamental rights, not expressly
guaranteed, have been recognized as indispensable to the enjoyment of enumerated rights.
The right to attend criminal trials is implicit in the guarantees of the First Amendment;
without the freedom to attend such trials, which people have exercised for centuries,
important aspects of freedom of speech and of the press could be eviscerated.
Be that as it may, we recognize that pervasive and prejudicial publicity under certain
circumstances can deprive an accused of his due process right to fair trial. Thus,
in Martelino, et al. vs. Alejandro, et al.,
54
we held that to warrant a finding of prejudicial
publicity there must be allegation and proof that the judges have been unduly influenced,
not simply that they might be, by the barrage of publicity. In the case at bar, we find
nothing in the records that will prove that the tone and content, of the publicity that
attended the investigation of petitioners fatally infected the fairness and impartiality of the
DOJ Panel. Petitioners cannot just rely on the subliminal effects of publicity on the sense
of fairness of the DOJ Panel, for these are basically unbeknown and beyond knowing. To
be sure, the DOJ Panel is composed of an Assistant Chief State Prosecutor and Senior State
Prosecutors. Their long experience in criminal investigation is a factor to consider in
determining whether they can easily be blinded by the klieg lights of publicity. Indeed,
their 26-page Resolution carries no indubitable indicia of bias for it does not appear that
they considered any extra-record evidence except evidence properly adduced by the
parties. The length of time the investigation was conducted despite its summary nature and
the generosity with which they accommodated the discovery motions of petitioners speak
well of their fairness. At no instance, we note, did petitioners seek the disqualification of
any member of the DOJ Panel on the ground of bias resulting from their bombardment of
prejudicial publicity.
It all remains to state that the Vizconde case will move to a more critical stage as
petitioners will now have to undergo trial on the merits. We stress that probable cause is
not synonymous with guilt and while the light of publicity may be a good disinfectant of
unfairness, too much of its heat can bring to flame an accused's right to fair trial. Without
imposing on the trial judge the difficult task of supervising every specie of speech relating
to the case at bar, it behooves her to be reminded of the duty of a trial judge in high profile
criminal cases to control publicity prejudicial to the fair administration of justice.
55
The
Court reminds judges that our ability to dispense impartial justice is an issue in every trial
and in every criminal prosecution, the judiciary always stands as a silent accused. More
than convicting the guilty and acquitting the innocent, the business of the judiciary is to
assure fulfillment of the promise that justice shall be done and is done - and that is the only
way for the judiciary to get an acquittal from the bar of public opinion.
IN VIEW WHEREOF, the petitions are dismissed for lack of showing of grave abuse of
discretion on the part of the respondents. Costs against petitioners.
SO ORDERED.
Regalado, J., concurs.
Mendoza, J., concurs in the result.
Narvasa, C.J., is on leave.
Criminal Procedure - Rule 112| Page 16 of 80



Separate Opinion
FRANCISCO, J ., concurring:
The thrust of petitioners' arguments involve the validity and exercise of the prosecutory
powers of the State. Maintaining their innocence, petitioners assert that the filing of an
information and the issuance of warrants of arrest against them were without probable
cause. Petitioners, in my considered view, failed to make a case to warrant the Court's
interference.
Preliminary investigation, unlike trial, is summary in nature, the purpose of which is
merely to determine whether a crime has been committed and whether there is probable
cause to believe that the accused is guilty thereof (Paderanga v. Drilon, 196 SCRA 86, 92
[1991]). It is not intended to find guilt beyond reasonable doubt. Courts should give
deference, in the absence of a clear showing of arbitrariness, as in this case, to the finding
and determination of probable cause by prosecutors in preliminary investigations. If not,
the functions of the courts will be unduly hampered by innumerable petitions compelling
the review of the exercise of discretion on the part of fiscals or prosecuting attorneys if
each time they decide to file an information in court their finding can be immediately
brushed aside at the instance of those charged (Ocampo IV v. Ombudsman, 225 SCRA
725, 730 [1993]). The Court, therefore, must look askance at unmeritorious moves that
could give a dent in the efficient and effective administration of justice.
Petitioners characterize the evidence against them to be inherently weak and
uncorroborated vis-a-vis their defenses. The weight or sufficiency of evidence, to my mind,
is best assayed in the trial proper. In the search for truth, a trial has distinct merits over a
preliminary investigation. We have had occasion to stress that trial is to be preferred to
ferret out the truth (Abugotal v. Tiro, 66 SCRA 196, 201 [1975]). The validity and merits
of a party's defense or accusation as well as the admissibility or inadmissibility of
testimonies and evidence are better ventilated during the trial stage than in the preliminary
investigation level. The ineluctable media attention notwithstanding, truth as to their
innocence or guilt is still best determined at the trial.
With respect to petitioners' contention that public respondent judge failed to personally
examine and determine the existence of probable cause for the issuance of a warrant,
suffice it to say that the judge does not have to personally examine the complainant and his
witnesses in order to issue a warrant of arrest as he can rely on the certification of the
prosecutor/s (Circular No. 12 - Guidelines on Issuance of Warrants of Arrests [June 30,
1987]; Soliven v. Makasiar, 167 SCRA 393, 398 [1988]). There is ample evidence and
sufficient basis on record that support the trial court's issuance of the warrant as petitioners
themselves do not contend that the prosecutors' certification was unaccompanied by the
records of the preliminary investigation to take their case outside the ambit of the rule.
Moreover, contrary to what the petitioners imply, the Court may not determine how
cursory or exhaustive the judge's examination of the certification, report and findings of the
preliminary investigation and its annexes should be as this depends not only upon the
sound exercise of the judge's discretion in personally determining the existence of probable
cause, but also from the circumstances of each case (Lim, Sr. v. Felix, 194 SCRA 292, 306
[1991]). Besides, respondent judge, being a public officer, enjoys the presumption of
regularity in the performance of his duties (Rule 131, Sec. 3 [m], Rules of Court). The
issuance of the warrants of arrest against petitioners thus can not be said to be whimsical or
arbitrary.
Lastly, the law in this jurisdiction is lopsided in favor of the accused. The 1987
Constitution and the Rules of Court enumerate an array of rights upon which an accused
can seek protection and solace. To mention a few: he has the right to be presumed innocent
until the contrary is proved, the right against self-incrimination, the right to remain silent,
to confront and cross-examine the witnesses against him, to have a speedy, impartial and
public trial, to be heard by himself and counsel, to have competent and independent
counsel preferably of his own choice. These rights are afforded to the accused and not to
the complainant. Therefore, petitioners need not be distressed if they henceforth go to trial.
I vote to dismiss the petitions.
Mendoza, J., concurs.

Separate Opinion
FRANCISCO, J ., concurring:
The thrust of petitioners' arguments involve the validity and exercise of the prosecutory
powers of the State. Maintaining their innocence, petitioners assert that the filing of an
information and the issuance of warrants of arrest against them were without probable
cause. Petitioners, in my considered view, failed to make a case to warrant the Court's
interference.
Preliminary investigation, unlike trial, is summary in nature, the purpose of which is
merely to determine whether a crime has been committed and whether there is probable
cause to believe that the accused is guilty thereof (Paderanga v. Drilon, 196 SCRA 86, 92
Criminal Procedure - Rule 112| Page 17 of 80

[1991]). It is not intended to find guilt beyond reasonable doubt. Courts should give
deference, in the absence of a clear showing of arbitrariness, as in this case, to the finding
and determination of probable cause by prosecutors in preliminary investigations. If not,
the functions of the courts will be unduly hampered by innumerable petitions compelling
the review of the exercise of discretion on the part of fiscals or prosecuting attorneys if
each time they decide to file an information in court their finding can be immediately
brushed aside at the instance of those charged (Ocampo IV v. Ombudsman, 225 SCRA
725, 730 [1993]). The Court, therefore, must look askance at unmeritorious moves that
could give a dent in the efficient and effective administration of justice.
Petitioners characterize the evidence against them to be inherently weak and
uncorroborated vis-a-vis their defenses. The weight or sufficiency of evidence, to my mind,
is best assayed in the trial proper. In the search for truth, a trial has distinct merits over a
preliminary investigation. We have had occasion to stress that trial is to be preferred to
ferret out the truth (Abugotal v. Tiro, 66 SCRA 196, 201 [1975]). The validity and merits
of a party's defense or accusation as well as the admissibility or inadmissibility of
testimonies and evidence are better ventilated during the trial stage than in the preliminary
investigation level. The ineluctable media attention notwithstanding, truth as to their
innocence or guilt is still best determined at the trial.
With respect to petitioners' contention that public respondent judge failed to personally
examine and determine the existence of probable cause for the issuance of a warrant,
suffice it to say that the judge does not have to personally examine the complainant and his
witnesses in order to issue a warrant of arrest as he can rely on the certification of the
prosecutor/s (Circular No. 12 - Guidelines on Issuance of Warrants of Arrests [June 30,
1987]; Soliven v. Makasiar, 167 SCRA 393, 398 [1988]). There is ample evidence and
sufficient basis on record that support the trial court's issuance of the warrant as petitioners
themselves do not contend that the prosecutors' certification was unaccompanied by the
records of the preliminary investigation to take their case outside the ambit of the rule.
Moreover, contrary to what the petitioners imply, the Court may not determine how
cursory or exhaustive the judge's examination of the certification, report and findings of the
preliminary investigation and its annexes should be as this depends not only upon the
sound exercise of the judge's discretion in personally determining the existence of probable
cause, but also from the circumstances of each case (Lim, Sr. v. Felix, 194 SCRA 292, 306
[1991]). Besides, respondent judge, being a public officer, enjoys the presumption of
regularity in the performance of his duties (Rule 131, Sec. 3 [m], Rules of Court). The
issuance of the warrants of arrest against petitioners thus can not be said to be whimsical or
arbitrary.
Lastly, the law in this jurisdiction is lopsided in favor of the accused. The 1987
Constitution and the Rules of Court enumerate an array of rights upon which an accused
can seek protection and solace. To mention a few: he has the right to be presumed innocent
until the contrary is proved, the right against self-incrimination, the right to remain silent,
to confront and cross-examine the witnesses against him, to have a speedy, impartial and
public trial, to be heard by himself and counsel, to have competent and independent
counsel preferably of his own choice. These rights are afforded to the accused and not to
the complainant. Therefore, petitioners need not be distressed if they henceforth go to trial.
I vote to dismiss the petitions.
Mendoza, J., concurs.

Criminal Procedure - Rule 112| Page 18 of 80

EN BANC
G.R. No. 88919 July 25, 1990
PEOPLE OF THE PHILIPPINES, Petitioner, vs. HONORABLE ENRIQUE B.
INTING, PRESIDING JUDGE, REGIONAL TRIAL COURT, BRANCH 38,
DUMAGUETE CITY, AND OIC MAYOR DOMINADOR S. REGALADO,
JR., Respondents.
GUTIERREZ, JR., J .:
Does a preliminary investigation conducted by a Provincial Election Supervisor involving
election offenses have to be coursed through the Provincial Fiscal now Provincial
Prosecutor, before the Regional Trial Court may take cognizance of the investigation and
determine whether or not probable cause exists?
On February 6, 1988, Mrs. Editha Barba filed a letter-complaint against OIC-Mayor
Dominador Regalado of Tanjay, Negros Oriental with the Commission on Elections
(COMELEC), for allegedly transferring her, a permanent Nursing Attendant, Grade I, in
the office of the Municipal Mayor to a very remote barangay and without obtaining prior
permission or clearance from COMELEC as required by law.chanroblesvirtualawlibrary
Acting on the complaint, COMELEC directed Atty. Gerardo Lituanas, Provincial Election
Supervisor of Dumaguete City: (1) to conduct the preliminary investigation of the case; (2)
to prepare and file the necessary information in court; (3) to handle the prosecution if the
evidence submitted shows a prima facie case and (3) to issue a resolution of prosecution or
dismissal as the case may be. The directive to conduct the preliminary investigation was
pursuant to COMELEC Resolution No. 1752 dated January 14, 1986. The resolution, in
turn, is based on the constitutional mandate that the COMELEC is charged with the
enforcement and administration of all laws relative to the conduct of elections for the
purpose of ensuring free, orderly and honest elections (sec. 2, Article XII-C of the 1973
Constitution) and on the Omnibus Election Code which implements the constitutional
provision. The Resolution provides, among others:
xxx xxx xxx
Further, Regional Election Directors and Provincial Election Supervisors are hereby
authorized to conduct preliminary investigations of election offenses committed in their
respective jurisdictions, file the corresponding complaints and/or informations in court
whenever warranted, and to prosecute the same pursuant to Section 265 of the Omnibus
Election Code. (Rollo, p. 15)
After a preliminary investigation of Barba's complaint, Atty. Lituanas found a prima
faciecase. Hence, on September 26, 1988, he filed with the respondent trial court a criminal
case for violation of section 261, Par. (h), Omnibus Election Code against the OIC-
Mayor.chanroblesvirtualawlibrary
In an Order dated September 30, 1988, the respondent court issued a warrant of arrest
against the accused OIC Mayor. It also fixed the bail at five thousand pesos (P5,000.00) as
recommended by the Provincial Election Supervisor.chanroblesvirtualawlibrary
However, in an order dated October 3, 1988 and before the accused could be arrested, the
trial court set aside its September 30, 1988 order on the ground that Atty. Lituanas is not
authorized to determine probable cause pursuant to Section 2, Article III of the 1987
Constitution. The court stated that it "will give due course to the information filed in this
case if the same has the written approval of the Provincial Fiscal after which the
prosecution of the case shall be under the supervision and control of the latter." (at p. 23,
Rollo, emphasis supplied)
In another order dated November 22, 1988, the court gave Atty. Lituanas fifteen (15) days
from receipt to file another information charging the same offense with the written
approval of the Provincial Fiscal.chanroblesvirtualawlibrary
Atty. Lituanas failed to comply with the order. Hence, in an order dated December 8, 1988,
the trial court quashed the information. A motion for reconsideration was
denied.chanroblesvirtualawlibrary
Hence, this petition.chanroblesvirtualawlibrary
The respondent trial court justifies its stand on the ground that the COMELEC through its
Provincial Election Supervisor lacks jurisdiction to determine the existence of probable
cause in an election offense which it seeks to prosecute in court because:
While under Section 265 of the Omnibus Election Code approved on December 3, 1985
duly authorized legal officers of the Commission on Elections have the exclusive power to
conduct preliminary investigation of all election offenses and to prosecute the same, it is
doubtful whether said authority under the auspices of the 1973 Constitution, still subsists
under the 1987 Constitution which has deleted in its Section 2, Article III, the phrase "and
such other responsible officer as may be authorized by law" in the equivalent section and
article of the 1973 Constitution. (Rollo, p. 24)
The petition is impressed with merit.chanroblesvirtualawlibrary
Criminal Procedure - Rule 112| Page 19 of 80

We emphasize important features of the constitutional mandate that " ... no search warrant
or warrant of arrest shall issue except upon probable cause to be determined personally by
the judge ... " (Article III, Section 2, Constitution)
First, the determination of probable cause is a function of the Judge. It is not for the
Provincial Fiscal or Prosecutor nor for the Election Supervisor to ascertain. Only the Judge
and the Judge alone makes this determination.chanroblesvirtualawlibrary
Second, the preliminary inquiry made by a Prosecutor does not bind the Judge. It merely
assists him to make the determination of probable cause. The Judge does not have to follow
what the Prosecutor presents to him. By itself, the Prosecutor's certification of probable
cause is ineffectual. It is the report, the affidavits, the transcripts of stenographic notes (if
any), and all other supporting documents behind the Prosecutor's certification which are
material in assisting the Judge to make his determination.chanroblesvirtualawlibrary
And third, Judges and Prosecutors alike should distinguish the preliminary inquiry which
determines probable cause for the issuance of a warrant of arrest from the preliminary
investigation proper which ascertains whether the offender should be held for trial or
released. Even if the two inquiries are conducted in the course of one and the same
proceeding, there should be no confusion about the objectives. The determination of
probable cause for the warrant of arrest is made by the Judge. The preliminary
investigation proper-whether or not there is reasonable ground to believe that the accused is
guilty of the offense charged and, therefore, whether or not he should be subjected to the
expense, rigors and embarrassment of trial is the function of the
Prosecutor.chanroblesvirtualawlibrary
The Court made this clear in the case of Castillo v. Villaluz (171 SCRA 39 [1989]):
Judges of Regional Trial Courts (formerly Courts of First Instance) no longer have
authority to conduct preliminary investigations. That authority, at one time reposed in them
under Sections 13, 14 and 16 Rule 112 of the Rules of Court of 1964, (See Sec. 4, Rule
108, Rules of Court of 1940; People v. Solon, 47 Phil. 443, cited in Moran, Comments on
the Rules, 1980 ed., Vol. 4, pp. 115-116) was removed from them by the 1985 Rules on
Criminal Procedure, effective on January 1, 1985, (Promulgated on November 11, 1984)
which deleted all provisions granting that power to said Judges. We had occasion to point
this out in Salta v. Court of Appeals, 143 SCRA 228, and to stress as well certain other
basic propositions, namely: (1) that the conduct of a preliminary investigation is "not a
judicial function ... (but) part of the prosecution's job, a function of the executive," (2) that
wherever "there are enough fiscals or prosecutors to conduct preliminary investigations,
courts are counseled to leave this job which is essentially executive to them," and the fact
"that a certain power is granted does not necessarily mean that it should be indiscriminately
exercised."
The 1988 Amendments to the 1985 Rules on Criminal Procedure, declared effective on
October 1, 1988, (The 1988 Amendments were published in the issue of Bulletin Today of
October 29, 1988) did not restore that authority to Judges of Regional Trial Courts; said
amendments did not in fact deal at all with the officers or courts having authority to
conduct preliminary investigations.chanroblesvirtualawlibrary
This is not to say, however, that somewhere along the line RTC Judges also lost the power
to make a preliminary examination for the purpose of determining whether probable cause
exists to justify the issuance of a warrant of arrest (or search warrant). Such a power -
indeed, it is as much a duty as it is a power - has been and remains vested in every judge by
the provision in the Bill of Rights in the 1935, the 1973 and the present (1987)
Constitutions securing the people against unreasonable searches and seizures, thereby
placing it beyond the competence of mere Court rule or statute to revoke. The distinction
must, therefore, be made clear while an RTC Judge may no longer conduct preliminary
investigations to ascertain whether there is sufficient ground for the filing of a criminal
complaint or information, he retains the authority, when such a pleading is filed with his
court, to determine whether there is probable cause justifying the issuance of a warrant of
arrest. It might be added that this distinction accords, rather than conflicts, with
the rationale of Salta because both law and rule, in restricting to judges the authority to
order arrest, recognize that function to be judicial in nature.
We reiterate that preliminary investigation should be distinguished as to whether it is an
investigation for the determination of a sufficient ground for the filing of the information or
it is an investigation for the determination of a probable cause for the issuance of a warrant
of arrest. The first kind of preliminary investigation is executive in nature. It is part of the
prosecution's job. The second kind of preliminary investigation which is more properly
called preliminary examination is judicial in nature and is lodged with the judge. It is in
this context that we address the issue raised in the instant petition so as to give meaning to
the constitutional power vested in the COMELEC regarding election
offenses.chanroblesvirtualawlibrary
Article IX C Section 2 of the Constitution provides:
Sec. 2. The Commission on Elections shall exercise the following powers and functions
(1) Enforce and administer all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum, and recall.chanroblesvirtualawlibrary
xxx xxx xxx
(6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion
or exclusion of votes, investigate and, where appropriate, prosecute cases of violation of
Criminal Procedure - Rule 112| Page 20 of 80

election laws, including acts or omission constituting election frauds, offenses, and
practices. (Emphasis supplied)
In effect the 1987 Constitution mandates the COMELEC not only to investigate but also to
prosecute cases of violation of election laws. This means that the COMELEC is
empowered to conduct preliminary investigations in cases involving election offenses for
the purpose of helping the Judge determine probable cause and for filing an information in
court. This power is exclusive with COMELEC.
The grant to the COMELEC of the power, among others, to enforce and administer all laws
relative to the conduct of election and the concomittant authority to investigate and
prosecute election offenses is not without compelling reason. The evident constitutional
intendment in bestowing this power to the COMELEC is to insure the free, orderly and
honest conduct of elections, failure of which would result in the frustration of the true will
of the people and make a mere idle ceremony of the sacred right and duty of every
qualified citizen to vote. To divest the COMELEC of the authority to investigate and
prosecute offenses committed by public officials in relation to their office would thus
seriously impair its effectiveness in achieving this clear constitutional
mandate.chanroblesvirtualawlibrary
From a careful scrutiny of the constitutional provisions relied upon by the Sandiganbayan,
We perceived neither explicit nor implicit grant to it and its prosecuting arm, the
Tanodbayan, of the authority to investigate, prosecute and hear election offenses
committed by public officers in relation to their office as contradistinguished from the clear
and categorical bestowal of said authority and jurisdiction upon the COMELEC and the
courts of first instance under Sections 182 and 184, respectively, of the Election Code of
1978.chanroblesvirtualawlibrary
An examination of the provisions of the Constitution and the Election Code of 1978 reveals
the clear intention to place in the COMELEC exclusive jurisdiction to investigate and
prosecute election offenses committed by any person, whether private individual or public
officer or employee, and in the latter instance, irrespective of whether the offense is
committed in relation to his official duties or not. In other words, it is the nature of the
offense and not the personality of the offender that matters. As long as the offense is an
election offense jurisdiction over the same rests exclusively with the COMELEC, in view
of its all-embracing power over the conduct of elections. (Corpus v. Tanodbayan, 149
SCRA 281 [1987])
Hence, the Provincial Fiscal, as such, assumes no role in the prosecution of election
offenses. If the Fiscal or Prosecutor files an information charging an election offense or
prosecutes a violation of election law, it is because he has been deputized by the
COMELEC. He does not do so under the sole authority of his office. (People v. Basilla, et
al., G.R. Nos. 83938-40, November 6, 1989). In the instant case, there is no averment or
allegation that the respondent Judge is bringing in the Provincial Fiscal as a deputy of
COMELEC. He wants the Fiscal to "approve" the COMELEC's preliminary investigation.
It is to be noted that on February 27, 1987 (when the 1987 Constitution was already in
effect) the President issued Executive Order No. 134 which was the ENABLING ACT
FOR ELECTIONS FOR MEMBERS OF CONGRESS ON MAY 11, 1987 AND FOR
OTHER PURPOSES." Section 11 thereof provides:
Prosecution. The Commission shall, through its duly authorized legal officers, have
exclusive power to conduct preliminary investigation of all election offenses punishable as
provided for in the preceding section, and to prosecute the same: Provided, That in the
event that the Commission fails to act on any complaint within two (2) months from filing,
the complainant may file the complaint with the Office of the Fiscal or with the
Department of Justice for proper investigation and prosecution, if
warranted.chanroblesvirtualawlibrary
The Commission may avail of the assistance of other prosecuting arms of the government.
It is only after a preliminary examination conducted by the COMELEC through its officials
or its deputies that section 2, Article III of the 1987 Constitution comes in. This is so,
because, when the application for a warrant of arrest is made and the information is filed
with the court, the judge will then determine whether or not a probable cause exists for the
issuance of a warrant of arrest.chanroblesvirtualawlibrary
Bearing these principles in mind, it is apparant that the respondent trial court misconstrued
the constitutional provision when it quashed the information filed by the Provincial
Election Supervisor. As indicated above what the respondent trial court should have done
was to enforce its September 30, 1988 order, to wit:
Pursuant to Circular No. 12 of the Chief Justice of the Supreme Court dated June 30, 1987
and considering that after a personal examination of the evidence submitted by the
investigating Provincial Election Supervisor III Negros Oriental (Designated Legal
Officer), there is reasonable ground for this Court to rely on the certification of said
Provincial Election Supervisor III in the information that a probable cause exists, let a
warrant issue for the arrest of the accused filing the bail at FIVE THOUSAND (P5,000.00)
PESOS as recommended by the Provincial Election Supervisor III.
The order to get the approval of the Provincial Fiscal is not only superfluous but
unwarranted.chanroblesvirtualawlibrary
WHEREFORE, the instant petition is GRANTED. The questioned Orders dated October 3,
1988, November 22, 1988 and December 8, 1988 are REVERSED and SET ASIDE. The
Criminal Procedure - Rule 112| Page 21 of 80

respondent trial court's Order dated September 30, 1988 is REINSTATED. The respondent
court is ordered to proceed hearing the case with deliberate speed until its
termination.chanroblesvirtualawlibrary
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla,
Bidin, Sarmiento, Cortes, Grio-Aquino, Medialdea and Regalado JJ., concur.

Criminal Procedure - Rule 112| Page 22 of 80

EN BANC

[G.R. Nos. 94054-57. February 19, 1991.]

VICENTE LIM, SR. and MAYOR SUSANA LIM, Petitioners, v. HON. NEMESIO S.
FELIX and HON. ANTONIO ALFANE, Respondents.

[G.R. Nos. 94266-69. February 19, 1991.]

JOLLY T. FERNANDEZ, FLORENCIO T. FERNANDEZ, JR., NONILON A.
BAGALIHOG, MAYOR NESTOR C. LIM and MAYOR ANTONIO
KHO, Petitioners, v. HON. NEMESIO S. FELIX and HON. ANTONIO
ALFANE, Respondents.

Francisco R. Llamas for petitioners in G.R. Nos. 94054-57.

Jolly T . Fernandez, Elenito Bagalihog, Orlando M . Danao and Hechanova, Ballicid
& Associates for petitioners in G.R. Nos. 94266-69.


D E C I S I O N


GUTIERREZ, JR., J .:


May a Judge without ascertaining the facts through his own personal determination and
relying solely on the certification or recommendation of a prosecutor that a probable cause
exists issue a warrant of arrest?

On March 17, 1989, at about 7:30 oclock in the morning, at the vicinity of the airport road
of the Masbate Domestic Airport, located at the municipality of Masbate province of
Masbate, Congressman Moises Espinosa, Sr. and his security escorts, namely Provincial
Guards Antonio Cortes, Gaspar Amaro, and Artemio Fuentes were attacked and killed by a
lone assassin. Dante Siblante another security escort of Congressman Espinosa, Sr.
survived the assassination plot, although, he himself suffered a gunshot wound.

An investigation of the incident then followed.

Thereafter, and for the purpose of preliminary investigation, the designated investigator,
Harry O. Tantiado, TSg, of the PC Criminal Investigation Service at Camp Bagong Ibalon,
Legazpi City filed an amended complaint with the Municipal Trial Court of Masbate
accusing, among others, Vicente Lim, Sr., Mayor Susana Lim of Masbate (petitioners in
G.R. Nos. 94054-57), Jolly T. Fernandez, Florencio T. Fernandez, Jr., Nonilon A.
Bagalihog, Mayor Nestor C. Lim and Mayor Antonio Kho (petitioners in G.R. Nos. 94266-
69) of the crime of multiple murder and frustrated murder in connection with the airport
incident. The case was docketed as Criminal Case No. 9211.

After conducting the preliminary investigation, the court issued an order dated July 31,
1989 stating therein that:

". . . after weighing the affidavits and answers given by the witnesses for the prosecution
during the preliminary examination in searching questions and answers, concludes that a
probable cause has been established for the issuance of a warrant of arrest of named
accused in the amended complaint, namely, Jimmy Cabarles, Ronnie Fernandez, Nonilon
Bagalihog, Jolly Fernandez, Florencio Fernandez, Jr., Vicente Lim, Sr., Susana Lim,
Nestor Lim, Antonio Kho, Jaime Liwanag, Zaldy Dumalag and Rene Tualla alias Tidoy."
(Rollo, p. 58, G.R. Nos. 94054-57)
x x x


In the same Order, the court ordered the arrest of the petitioners and recommended the
amount of P200,000.00 as bail for the provisional liberty of each of the accused.

Petitioners Jolly Fernandez and Nonilon Bagalihog filed a motion for the reduction of bail
which was granted by the court and they were allowed to post bail in the amount of
P150,000.00 each. Except for Jimmy Cabarles, all the rest of the accused posted bail at
P200,000.00 each.

On August 29, 1989, the entire records of the case consisting of two hundred sixty one
(261) pages were transmitted to the Provincial Prosecutor of Masbate. Respondent Acting
Fiscal Antonio C. Alfane was designated to review the case.

On September 22, 1989, Fiscal Alfane issued a Resolution which affirmed the finding of a
prima facie case against the petitioners but differed in the designation of the crime in that
the ruled that." . . all of the accused should not only be charged with Multiple Murder With
Frustrated Murder" but for a case of MURDER for each of the killing of the four victims
and a physical injuries case for inflicting gunshot wound on the buttocks of Dante
Siblante." (Annex H, Comment of Fiscal Alfane, p. 186, Rollo, G.R. Nos. 94054-57) A
motion to reconsider the Resolution filed by petitioners Vicente Lim, Sr. and Mayor
Susana Lim was denied.

On October 30, 1989, Fiscal Alfane filed with the Regional Trial Court of Masbate, four
(4) separate informations of murder against the twelve (12) accused with a
recommendation of no bail.

On November 21, 1989, petitioners Vicente Lim, Sr. and Susana Lim filed with us a
Criminal Procedure - Rule 112| Page 23 of 80

verified petition for change of venue. (Case No. A.M. No. 89-11-1270-MTC, formerly,
G.R. Nos. 90587-90).

On December 14, 1989, we issued an en banc Resolution authorizing the change of venue
from the Regional Trial Court of Masbate to the Regional Trial Court of Makati to avoid a
miscarriage of justice, to wit:

"Acting on the petition for change of venue of the trial of Criminal Cases Nos. 5811, 5812,
5813, and 5814 from the Regional Trial Court, Masbate, Masbate to any of the Regional
Trial Courts at Quezon City or Makati, the Court Resolved to (a) GRANT the aforesaid
petition for transfer of venue in order to avoid miscarriage of justice (Article VIII, Section
5(4) of the Philippine Constitution); (b) DIRECT the Clerk of Court, Regional Trial Court,
Masbate, Masbate to transmit the records of the aforesaid cases to the Executive Judge,
Regional Trial Court, Makati, for raffling among the other branches of the court; and (c)
ORDER the Regional Trial Court of Masbate, Masbate to desist from further taking
cognizance of the said cases until such time that the petition is finally resolved."

The cases were raffled to Branch 56 presided by respondent Judge Nemesio S. Felix.

Petitioners Vicente Lim, Sr. and Susana Lim filed with the respondent court several
motions and manifestations which in substance prayed for the following:

"1. An order be issued requiring the transmittal of the initial records of the preliminary
inquiry or investigation conducted by the Municipal Judge Barsaga of Masbate for the best
enlightenment of this Honorable Court in its personal determination of the existence of a
probable cause or prima facie evidence as well as its determination of the existence of
guilt, pursuant to the mandatory mandate of the constitution that no warrant shall issue
unless the issuing magistrate shall have himself been personally convinced of such
probable cause.

2. Movants be given ample opportunity to file their motion for preliminary investigation as
a matter of right; and

3. In the event that this court may later be convinced of the existence of a probable cause,
to be allowed to file a motion for reduction of bail or for admission of bail." (p. 17, Rollo,
G.R. Nos. 94054-57)

In another manifestation, the Lims reiterated that the court conduct a hearing to determine
if there really exists a prima facie case against them in the light of documents which are
recantations of some witnesses in the preliminary investigation. The motions and
manifestations were opposed by the prosecution.

On July 5, 1990, the respondent court issued an order denying for lack of merit the motions
and manifestations and issued warrants of arrest against the accused including the
petitioners herein. The respondent Judge said:

"In the instant cases; the preliminary investigation was conducted by the Municipal Trial
Court of Masbate, Masbate which found the existence of probable cause that the offense of
multiple murder was committed and that all the accused are probably guilty thereof, which
was affirmed upon review by the Provincial Prosecutor who properly filed with the
Regional Trial Court four separate informations for murder. Considering that both the two
competent officers to whom such duty was entrusted by law have declared the existence of
probable cause, each information is complete in form and substance, and there is no visible
defect on its face, this Court finds it just and proper to rely on the prosecutors certification
in each information which reads:" (pp. 19-20, Rollo, G.R Nos. 94054-57; Emphasis
supplied)
x x x


The petitioners then filed these consolidated petitions questioning the July 5, 1990 Order.

In a Resolution dated July 17, 1990 in G.R. Nos. 94054-57, we issued." . . a
TEMPORARY RESTRAINING ORDER, effective immediately and continuing until
further orders from this Court, ordering the respondent judge or his duly authorized
representatives or agents to CEASE and DESIST from enforcing or implementing the
warrant of arrest without bail issued against the petitioners in his Order dated July 5, 1990
in Criminal Cases Nos. 5811-14."

In another Resolution dated July 31,1 990 in G.R. Nos. 94266-69, we resolved:
x x x


". . . To ISSUE writs of (1) PRELIMINARY MANDATORY INJUNCTION, ordering and
directing the respondent judge to recall/set aside and/or annul the legal effects of the
warrants of arrest without bail issued against and served upon herein petitioners Jolly T.
Fernandez, Florencio T. Fernandez, Jr. and Nonilon Bagalihog and release them from
confinement at PC-CIS Detention Center, Camp Crame, Quezon City; and (2)
TEMPORARY RESTRAINING ORDER, effective immediately and continuing until
further orders from this Court, ordering the respondent judge or his duly authorized
representatives or agents, to CEASE AND DESIST from enforcing or implementing the
warrants of arrest without bail issued against petitioners Mayors Nestor C. Lim and
Antonio T. Kho."

The primary issue in these consolidated petitions centers on whether or not a judge may
issue a warrant of arrest without bail by simply relying on the prosecutions certification
and recommendation that a probable cause exists.
Criminal Procedure - Rule 112| Page 24 of 80


This is not a novel question. In the case of Placer v. Villanueva (126 SCRA 463 [1983]),
we ruled that a judge may rely upon the fiscals certification of the existence of probable
cause and, on the basis thereof, issue a warrant of arrest. However, the certification does
not bind the judge to come out with the warrant of arrest. This decision interpreted the
"search and seizure" provision of the 1973 Constitution which provides:

". . . no search warrant or warrant of arrest shall issue except upon probable cause to be
determined by the judge, or such other responsible officer as may be authorized by law,
after examination under oath or affirmation of the complainant and the witnesses he may
produce . . ."

We ruled:

". . . The issuance of a warrant is not a mere ministerial function; it calls for the exercise of
judicial discretion on the part of the issuing magistrate. This is clear from the following
provisions of Section 6, Rule 112 of the Rules of Court.

Warrant of arrest, when issued. If the judge be satisfied from the preliminary
examination conducted by him or by the investigating officer that the offense complained
of has been committed and that there is reasonable ground to believe that the accused has
committed it, he must issue a warrant or order for his arrest.

Under this section, the judge must satisfy himself of the existence of probable cause before
issuing a warrant or order of arrest. If on the face of the information the judge finds no
probable cause, he may disregard the fiscals certification and require the submission of the
affidavits of witnesses to aid him in arriving at a conclusion as to the existence of a
probable cause. This has been the rule since U.S v. Ocampo (18 Phil. 1) and Amarga v.
Abbas (98 Phil. 739). And this evidently is the reason for the issuance by respondent of the
questioned orders of April 13, 15, 16, 19, 1982 and July 13, 1982. Without the affidavits of
the prosecution witnesses and other evidence which, as a matter of long-standing practice
had been attached to the information filed in his sala, respondent found the informations
inadequate bases for the determination of probable cause. For as the ensuing events would
show, after petitioners had submitted the required affidavits, respondent wasted no time in
issuing the warrants of arrest in the case where he was satisfied that probable cause
existed."

The case of Soliven v. Makasiar (167 SCRA 393 [1988]) was decided after the effectivity
of the 1987 Constitution. We stated:

"The second issue, raised by petitioner Beltran, calls for an interpretation of the
constitutional provision on the issuance of warrants of arrest. The pertinent provision reads:

Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized.

The addition of the word personally after the word determined and the deletion of the
grant of authority by the 1973 Constitution to issue warrants to other respondent officers
as may be authorized by law, has apparently convinced petitioner Beltran that the
Constitution now requires the judge to personally examine the complainant and his
witnesses in his determination of probable cause for the issuance of warrants of arrest. This
is not an accurate interpretation.

What the Constitution underscores is the exclusive and personal responsibility of the
issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of
the existence of probable cause for the issuance of a warrant of arrest, the judge is not
required to personally examine the complainant and his witnesses. Following established
doctrine and procedures, he shall: (1) personally evaluate the report and the supporting
documents submitted by the fiscal regarding the existence of probable cause and, on the
basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable
cause, he may disregard the fiscals report and require the submission of supporting
affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable
cause.

Sound policy dictates this procedure, otherwise judges would be unduly laden with the
preliminary examinations and investigation of criminal complaints instead of concentrating
on hearing and deciding cases filed before their courts."

The decision in People v. Honorable Enrique B. Inting, Et. Al. (G.R. No. 88919, July 25,
1990), reiterated the above interpretation of "personal" determination by the Judge:

"We emphasize important features of the constitutional mandate that . . . no search warrant
or warrant of arrest shall issue except upon probable cause to be determined personally by
the judge . . . (Article III, Section 2, Constitution)

First, the determination of probable cause is a function of the Judge. It is not for the
Provincial Fiscal or Prosecutor nor for the Election Supervisor to ascertain. Only the Judge
and the Judge alone makes this determination.

Second, the preliminary inquiry made by a Prosecutor does not bind the Judge. It merely
assists him to make the determination of probable cause. The Judge does not have to follow
what the Prosecutor presents to him. By itself the Prosecutors certification of probable
cause is ineffectual. It is the report, the affidavits, the transcripts of stereographic notes (if
any), and all other supporting documents behind the Prosecutors certification which are
Criminal Procedure - Rule 112| Page 25 of 80

material in assisting the Judge to make his determination.

And third, Judges and Prosecutors alike should distinguish the preliminary inquiry which
determines probable cause for the issuance of a warrant of arrest from the preliminary
investigation proper which ascertains whether the offender should be held for trial or
released. Even if the two inquiries are conducted in the course of one and the same
proceeding, there should be no confusion about the objectives. The determination of
probable cause for the warrant of arrest is made by the Judge. The preliminary
investigation proper whether or not there is reasonable ground to believe that the
accused is guilty of the offense charged and, therefore, whether or not he should be
subjected to the expense, rigors and embarrassment of trial is the function of the
Prosecutor.

The Court made this clear in the case of Castillo v. Villaluz (171 SCRA 39 [1989]):

Judges of Regional Trial Courts (formerly Courts of First Instance) no longer have
authority to conduct preliminary investigations. That authority, at one time reposed in them
under Sections 13,14 aid 16, Rule 112 of the Rules of Court of 1964 (See Sec. 4, Rule 108,
Rules of Court of 1940; People v. Solon, 47 Phil. 443, cited in Moran, Comments on the
Rules, 1980 ed., Vol. 4, pp. 115-116) was removed from them by the 1985 Rules on
Criminal Procedure, effective on January 1, 1985, (Promulgated on November 11, 1984)
which deleted all provisions granting that power to said Judges. We had occasion to point
this out in Salta v. Court of Appeals, 143 SCRA 228, and to stress as well certain other
basic propositions, namely: (1) that the conduct of a preliminary investigation is not a
judicial function . . . (but) part of the prosecutions job, a function of the executive, (2)
that whenever there are enough fiscals or prosecutors to conduct preliminary
investigations, courts are counseled to leave this job which is essentially executive to
them, and the fact that a certain power is granted does not necessary mean that it should
be indiscriminately exercised.

The 1988 Amendments to the 1985 Rules on Criminal Procedure, declared effective on
October 1, 1988, (The 1988 Amendments were published in the issue of Bulletin Today of
October 29, 1988) did not restore that authority to Judges of Regional Trial Courts; said
amendments did not in fact deal at all with the officers or courts having authority to
conduct preliminary investigations.

This is not to say, however, that somewhere along the line RTC Judges also lost the power
to make a preliminary examination for the purpose of determining whether probable cause
exists to justify the issuance of a warrant of arrest (or search warrant). Such a power
indeed, it is as much a duty as it is a power has been and remains vested in every judge
by the provisions in the Bill of Rights in the 1935, the 1973 and the present [1987]
Constitutions securing the people against unreasonable searches and seizures, thereby
placing it beyond the competence of mere Court Rule or Statute to revoke. The distinction
must, therefore, be made clear while an RTC Judge may no longer conduct preliminary
investigations to ascertain whether there is sufficient ground for the filing of a criminal
complaint or information, he retains the authority, when such a pleading is filed with his
court, to determine whether there is probable cause justifying the issuance of a warrant of
arrest. It might be added that this distinction accords, rather than conflicts, with the
rationale of Salta because both law and role, in restricting to judges the authority to order
arrest, recognize the function to be judicial in nature.

We reiterate that preliminary investigation should be distinguished as to whether it is an
investigation for the determination of a sufficient ground for the filing of the information or
it is an investigation for the determination of a probable cause for the issuance of a warrant
of arrest. The first kind of preliminary investigation is executive in nature. It is part of the
prosecutions job. The second kind of preliminary investigation which is more properly
called preliminary examination is judicial in nature and is lodged with the Judge. . . ."

Finally in the recent case of People v. Delgado, Et. Al. (G.R. Nos. 93419-32, September
18, 1990) there is a statement that the judge may rely on the resolution of COMELEC to
file the information by the same token that it may rely on the certification made by the
prosecutor who conducted the preliminary investigation in the issuance of the warrant of
arrest. We, however, also reiterated that." . . the court may require that the record of the
preliminary investigation be submitted to it to satisfy itself that there is probable cause
which will warrant the issuance of a warrant of arrest." (Section 2, Article III,
Constitution). Reliance on the COMELEC resolution or the Prosecutors certification
presupposes that the records of either the COMELEC or the Prosecutor have been
submitted to the Judge and he relies on the certification or resolution because the records of
the investigation sustain the recommendation. The warrant issues not on the strength of the
certification standing alone but because of the records which sustain it.

It is obvious from the present petition that notwithstanding the above decisions, some
Judges are still bound by the inertia of decisions and practice under the 1935 and 1973
Constitutions and are sadly confused or hesitant. Prosecutors are also interested in a clear
cut ruling. We will, therefore, restate the rule in greater detail and hopefully clearer terms.

There is no problem with search warrants which are relatively fewer and far between and
where there is no duplication of work between the Judge and the Prosecutor. The problem
lies with warrants of arrest especially in metropolitan or highly urban areas. If a Judge has
to personally question each complainant and witness or go over the records of the
Prosecutors iuvestigation page by page and word for word before he acts on each of a big
pile of applications for arrest warrants on his desk, he or she may have no more time for his
or her more important judicial functions.

At the same time, the Judge cannot ignore the clear words of the 1987 Constitution which
requires." . . probable cause to be personally determined by the judge . . .", not by any other
officer or person.

Criminal Procedure - Rule 112| Page 26 of 80

If a Judge relies solely on the certification of the Prosecutor as in this case where all the
records of the investigation are in Masbate, he or she has not personally determined
probable cause. The determination is made by the Provincial Prosecutor. The constitutional
requirement has not been satisfied. The Judge commits a grave abuse of discretion.

The records of the preliminary investigation conducted by the Municipal Court of Masbate
and reviewed by the respondent Fiscal were still in Masbate when the respondent Fiscal
issued the warrants of arrest against the petitioners. There was no basis for the respondent
Judge to make his own personal determination regarding the existence of a probable cause
for the issuance of a warrant of arrest as mandated by the Constitution. He could not
possibly have known what transpired in Masbate as he had nothing but a certification.
Significantly, the respondent Judge denied the petitioners motion for the transmittal of the
records on the ground that the mere certification and recommendation of the respondent
Fiscal that a probable cause exists is sufficient for him to issue a warrant of arrest. :

We reiterate the ruling in Soliven v. Makasiar that the Judge does not have to personally
examine the complainant and his witnesses. The Prosecutor can perform the same functions
as a commissioner for the taking of the evidence. However, there should be a report and
necessary documents supporting the Fiscals bare certification. All of these should be
before the Judge.

The extent of the Judges personal examination of the report and its annexes depends on
the circumstances of each case. We cannot determine beforehand how cursory or
exhaustive the Judges examination should be. The Judge has to exercise sound discretion
for, after all, the personal determination is vested in the Judge by the Constitution. It can be
as brief or as detailed as the circumstances of each case require. To be sure, the Judge must
go beyond the Prosecutors certification and investigation report whenever necessary. He
should call for the complainant and witnesses themselves to answer the courts probing
questions when the circumstances of the case so require.

It is worthy to note that petitioners Vicente Lim, Sr. and Susana Lim presented to the
respondent Judge documents of recantation of witnesses whose testimonies were used to
establish a prima facie case against them. Although, the general rule is that recantations are
not given much weight in the determination of a case and in the granting of a new trial
(Tan Ang Bun v. Court of Appeals, Et. Al. G.R. No. L-47747, February 15, 1990, People v.
Lao Wan Sing, 46 SCRA 298 [1972]) the respondent Judge before issuing his own
warrants of arrest should, at the very least, have gone over the records of the preliminary
examination conducted earlier in the light of the evidence now presented by the concerned
witnesses in view of the "political undertones" prevailing in the cases. Even the Solicitor
General recognized the significance of the recantations of some witnesses when he
recommends a reinvestigation of the cases, to wit:

"It must be pointed out, however, that among the documents attached to this Petition are
affidavits of recantation subsequently executed by Jimmy Cabarles and Danilo Lozano and
an affidavit executed by one, Camilo Sanano, father of the complainants witnesses, Renato
and Romeo Sanano. It was precisely on the strength of these earlier written statements of
these witnesses that the Municipal Trial Court of Masbate found the existence of a prima
facie case against petitioners and accordingly recommended the filing of a Criminal
Information. Evidently, the same written statements were also the very basis of the
Fiscals Certification, since the attached affidavits of recantation were not yet then
available. Since the credibility of the prosecution witnesses is now assailed and put in issue
and, since the petitioners have not yet been arraigned, it would be to the broader interest of
justice and fair play if a reinvestigation of this case be had to secure the petitioners against
hasty prosecution and to protect them from an open and public accusation of crime, from
the trouble, expense and anxiety of a public trial, and also to protect the State from useless
and expensive trials (Salonga v. Pao, G.R. No. 59524, February 18, 1985). (Rollo of G.R.
Nos. 94054-56, pp. 200-201).

We reiterate that in making the required personal determination, a Judge is not precluded
from relying on the evidence earlier gathered by responsible officers. The extent of the
reliance depends on the circumstances of each case and is subject to the Judges sound
discretion. However, the Judge abuses that discretion when having no evidence before him,
he issues a warrant of arrest.

Indubitably, the respondent Judge committed a grave error when he relied solely on the
Prosecutors certification and issued the questioned Order dated July 5, 1990 without
having before him any other basis for his personal determination of the existence of a
probable cause.

WHEREFORE, the instant petitions are hereby GRANTED. The questioned Order of
respondent Judge Nemesio S. Felix of Branch 56, Regional Trial Court of Makati dated
July 5, 1990 is declared NULL and VOID and SET ASIDE. The Temporary Restraining
Orders and Preliminary Mandatory Injunction issued in the instant Petitions are made
PERMANENT.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin,
Grio-Aquino, Medialdea and Regalado, JJ., concur.

Sarmiento, J., took no part.

Criminal Procedure - Rule 112| Page 27 of 80

THIRD DIVISION

[G.R. No. 100772. July 1, 1992.]

ALEX GO, Petitioner, v. COURT OF APPEALS, ASSOCIATED BANK and
LUCIANO MABASA,Respondents.

Gupit, Navarrete & Diaz for Petitioner.

Soluta, Leonidas, Maristoque, Balce, Santiago & Aguila Law Offices for Private
Respondents.


SYLLABUS


1. REMEDIAL LAW; APPEAL; COURT NOT TO CONSIDER ANY GROUND OR
OBJECTION NOT RAISED IN COURT BELOW. The appellate court then will not
consider any ground or objection other than that raised in the court below, except questions
on jurisdiction over the subject-matter which may be raised at any stage of the proceedings.
Indeed, as correctly held by the respondent Court, the issue of lack of publication of the
notice of foreclosure of the mortgage was raised only on appeal. Neither in the complaint
nor in the petition does petitioner make reference to such lack of notice. Additionally,
petitioner presented no evidence before the trial court to prove the absence of publication
of the notice despite the fact that private respondents, in their Answer, squarely pleaded as
a defense the foreclosure sale and petitioner s receipt of the "notice of the sale which was
published in a newspaper of general circulation." That the lack of publication of the notice
of foreclosure was never raised in issue by petitioner and that it is not within the issues
framed by the parties in the trial court are then too obvious.

2. ID.; NEW TRIAL BEFORE THE COURT OF APPEALS; REQUISITES; CASE AT
BAR. The plea for a new trial must likewise be rejected as it was initially sought for
only in the prayer of petitioners Reply Brief. He did not pursue it any further until after the
respondent Court promulgated its challenged decision. New trial before the Court of
Appeals is governed by Rule 53 of the Rules of Court. Petitioners Motion for
Reconsideration/New Trial is not accompanied by the affidavit required by the above rule.
Petitioner did not even care to verify it himself. One Gloria B. Go, who describes herself as
the "duly appointed and constituted attorney-in-fact by (sic) the plaintiff-appellant" made
the verification. However, no copy of the power of attorney appointing her as such is
attached to the motion.

3. ID.; ID.; NEWLY DISCOVERED EVIDENCE; PETITIONERS STONY SILENCE
PLACES A HEAVY BURDEN ON THE COURTS CREDULITY. The alleged newly
discovered evidence would show the supposed absence of publication of the notice of
foreclosure which "could not have been discovered earlier as it was cleverly hidden
through a manufactured xerox copy." This is hollow pretense and a shallow excuse which
hardly evokes the Courts sympathy. As stated earlier, private respondents explicitly
alleged in their Answer the fact of foreclosure of mortgage and petitioners receipt "of the
notice of sale which was published in a newspaper of general circulation." Having been put
on guard, prudence dictates that he should have wasted no time in verifying from the office
of the sheriff concerned if indeed there was such a publication In the light of his principal
claim that he did not receive the consideration for the promissory notes a huge sum and
not just a picayune amount which he signed together with the contract of mortgage to
secure it in 1979, it is simply incredible that upon being informed of the foreclosure sale
and the consolidation of the titles of the properties in the name of the highest bidder, herein
private respondent bank, petitioner would simply ignore the shocking information. A
person is presumed to take ordinary care of his concerns. If, as petitioner suggests, the
contracts unlawfully deprived him of his property rights, then his stony silence for years
places a heavy burden on this Courts credulity.

4. ID.; TRIAL BY COMMISSIONER; ISSUES MAY BE REFERRED THERETO.
Estoppel bars him from so raising this question. His petition reveals that he did not object
to the continuation of the reception of evidence before the Branch Clerk of Court after the
lifting of the declaration of default. Even if indeed, as the petitioner contends, the Branch
Clerk of Court acted as a commissioner in receiving the evidence, nothing seems to be
irregular about it. Rule 33 of the Rules of Court allows the court, on its own motion, to
direct that issues of a case be referred to a commissioner. In the second place, what actually
happened in this case is that the court referred the reception of the evidence to the Branch
Clerk of Court.

5. ID.; ID.; ID.; CASE OF GOCHANGCO V. CFI OF NEGROS OCCIDENTAL
OVERRULED EARLIER CONTRARY RULING. Gochangco v. Court of First
Instance of Negros Occidental and Monserrate v. Court of Appeals reiterated this rule.
Gochangco, decided by this Court, en banc, overruled the earlier contrary decision in Lim
Tanhu v. Ramolete. Petitioner does not at all claim that the decision of the trial court would
have been different if the reception of the evidence were made by it, or that his substantial
rights were prejudiced by the assailed procedure. Thus, the contention that it abdicated its
judicial responsibility or that procedural due process was violated merits scant
consideration.

6. ID.; DECISION; RESPONDENT COURTS ADOPTION OF TRIAL COURTS
FINDINGS, A SUBSTANTIAL COMPLIANCE WITH REQUIREMENT. It is not true
that the challenged decision violates the constitutional requirement that a decision shall
expressly and distinctly state the facts and the law on which it is based. Although the
respondent Court merely quotes the findings of the trial court and concludes that" [a]fter a
painstaking perusal of the case" it finds "no reversible error committed by the court a quo."
and such may leave much to be desired, there is no doubt in the mind of this Court that the
Criminal Procedure - Rule 112| Page 28 of 80

respondent Court adopted, in effect, such findings as its own; accordingly, there was
substantial compliance with the stated constitutional requirement.


D E C I S I O N


DAVIDE, JR., J .:


Petitioner seeks the review and reversal of the Decision 1 of 7 January 1991 and the
Resolution of 27 June 1991 of the respondent Court of Appeals in C.A.-G.R. No. 17026,
entitled "Alex Go versus Associated Citizens Bank and Luciano Mabasa", which,
respectively, affirmed in toto the judgment of Branch 137 (Makati) of the Regional Trial
Court of the National Capital Region in Civil Case No. 8920 dismissing petitioners
complaint with costs against him and denied the motion to reconsider the decision.

This Court gave due course to the petition after private respondent filed his Comment to
the petition in compliance with the Resolution of 4 September 1991 and the petitioner
submitted his Reply thereto.

The antecedent facts, as summarized by the trial court and quoted in the challenged
decision of the respondent Court, are as follows:chanrobles law library : red

"Sometime on 28 August 1978, plaintiff opened a current account with the defendant
Associated Citizens Bank, Grace Park Branch, denominated as C/A No. 472-5 (Cf. Exh. 1).
Pursuant to an understanding between plaintiff and defendant Luciano Mabasa, Senior
Vice-President, Branches Division, of defendant bank, plaintiff was allowed to incur
overdrafts (Cf. Exhs. 1-A through 1-AA), so much so that as of 2 July 1979, plaintiffs
overdraft reached the amount of P856,986.38 (Cf. Exh 1-Y). Thus, on 10 July 1979,
plaintiff executed a Real Estate Mortgage (Exh B) in favor of defendant Bank as security
for the payment of the principal sum of P235,000.00. Plaintiff also signed two (2)
Promissory Notes (Exhs. C or 2 and D or 3) in the amounts of P900,000.00 and
P235.000.00, respectively. Said promissory notes were discounted by defendant Bank (Cf.
Exhs 2-A and 3-A), and the net proceeds thereof were credited to plaintiffs current
account No. 472-5 (Cf. Exhs. 1-Y-1 and 1-Y-2), thereby extinguishing in full plaintiffs
overdraft balance of P856,986.38, and resulting in creating (sic) a credit balance in
plaintiffs said account in the amount of P112,832.55 (Cf. Exh. 1-Y) In view of plaintiffs
failure to pay the promissory notes (Exhs. C or 2 and D or 3), the defendant Bank
foreclosed on the Mortgage (Exh. B), and on 22 December 1980, the mortgaged properties
were sold at public auction to defendant Bank, as the highest bidder, for the total sum of
P328,748.62 (Cf. Annex 4, Answer). For failure of plaintiff to redeem said properties, the
title to said properties were consolidated in the name of defendant Bank.

It is also reflected in the banks record (Cf. Exh. 1-W) that on 21 May 1979, plaintiffs
current account was credited with the total sum of P550,000.00 when he deposited three (3)
checks in the respective amounts of P120,000.00, P180,000.00 and P250,000.00. However,
these checks were later dishonored and returned to the defendant Bank, so the latter debited
the corresponding amounts of said checks (Cf. Exh. 1-W-1). (pp. 140-141, Records)." 2

Despite the foreclosure of the mortgage and the subsequent consolidation of the title of the
properties in the name of private respondent bank, petitioner filed on 5 November 1984
with the trial court the complaint in the abovestated Civil Case No. 8920 for a sum of
money and cancellation of mortgage against the private respondents. 3 In their Answer,
private respondents allege that petitioner is estopped from denying his obligation as he
expressly admitted the due execution of the promissory notes; moreover, the mortgage had
already been foreclosed and petitioner received a notice of the foreclosure sale which was
published in a newspaper of general circulation. 4

Private respondents were initially declared in default and the petitioner was allowed to
present his evidence ex-parte before the Branch Clerk of Court. When private respondents
later appeared, their evidence was likewise received by the Branch Clerk of Court. 5

On 18 September 1987, the trial court rendered a decision adverse to the petitioner on the
basis of the following findings of fact: 6

"From the foregoing, the issues are clear and definite. First, has plaintiff received the
proceeds of the promissory notes, Exhibits C and D? Second, is it true, as plaintiff claims,
that defendant Bank withdrew the sum of P300,000.00 on 22 May 1979 from plaintiffs
current account without his knowledge and consent?

Upon due consideration and assessment, the Court finds and concludes that the evidence
weighs heavily in favor of the defendant Bank. Indeed, the evidence clearly demonstrates
that plaintiff has no valid cause of action against defendant Bank, much less against
defendant Luciano Mabasa.

Plaintiff has not denied the authenticity and due execution of the Real Estate Mortgage and
the promissory notes. However, plaintiff contends that he is not legally bound by said
documents because he has not received the proceeds, or any portion thereof, of the
promissory notes in question. This contention is totally devoid of merit, as it is not borne
out by the Banks records. It is incontrovertible that the net proceeds of the subject
promissory notes were duly credited to plaintiffs current account (Cf. Exhs. 1-Y-1 and 1-
Y-2) Considering that plaintiff had an overdraft (debit) balance of P856,989.38 when the
net proceeds of the promissory notes in the respective sums of P771,074.90 (Exh. 1-Y-2)
and P204,777.59 (Exh. 1-Y-1) were credited to plaintiffs current account, compensation
takes place by operation of law (Art. 1286, New Civil Code), and extinguished plaintiffs
overdraft balance in full (Art. 1290, id.). In other words, the proceeds of the promissory
notes were applied to set-off the overdraft (debit) balance in plaintiffs account. Hence, it is
Criminal Procedure - Rule 112| Page 29 of 80

not true that plaintiff did not receive any amount out of the promissory notes in question.

Regarding the alleged unauthorized withdrawal of the sum of P300,000.00 by the
defendant Bank, suffice it to state that once again plaintiffs pretensions are controverted
by the records of the bank. There is no denying that plaintiff deposited checks in his
account, but they were all dishonored. Hence, the amount initially credited to plaintiffs
account must necessarily have to be cancelled by entering the corresponding reversing
entry. This is so because a check deposited does not constitute a credit account until the
same is collected. Consequently, there was no amount actually withdrawn or debited from
plaintiffs account, since there was no amount deposited in the first place."

Petitioner appealed the said decision to the respondent Court and, in his Appellants Brief,
alleged that the trial court erred:
"I


. . . in not holding that the promissory notes of P900,000.00 and P235,000.00 and the real
estate mortgage are not valid for lack of consent and consideration;
II


. . . in not holding that the sum of P300,000.00 was illegally withdrawn by the defendants
from plaintiff s current account;
III


. . . in not finding that a full-blown trial before a commissioner with both parties present, is
null and void;
IV


. . . in not finding that, in any event, the foreclosure was not valid for lack of the
jurisdictional requirement of publication;
V


. . . in not granting to plaintiff his counterclaims for moral damages in the amount of
P700,000 00 and attorneys fees."

As to the issue of lack of publication of the notice of foreclosure of mortgage, private
respondents asserted in their Appellees Brief that this matter was raised for the first time;
they further claimed that the notice was in fact published and, as proof thereof, they
attached as Annex "A" of their Brief the printers affidavit of publication. 7 In his Reply
Brief, petitioner contended that the lack of publication is encompassed in the issue
concerning the validity of the foreclosure and that, in any event, his case falls within the
exception to the rule that bars the raising of an issue for the first time on appeal. He further
declared that the affidavit of publication is false because upon investigation in the National
Library, he discovered that the three (3) issues of the Nuevo Horizonte mentioned in the
affidavit do not contain the alleged publication. He then reiterated his prayer in his Brief
and further asked that the case be remanded to the trial court "for further proceedings and
for new trial likewise on the ground of newly discovered evidence." 8

On 7 January 1991, the respondent Court promulgated its decision which, as earlier
adverted to, affirmed in toto the decision of the trial court on the basis of the following
findings and conclusion.

"After a painstaking perusal of the case under consideration, We find no reversible error
committed by the court a quo. However, anent the contention of appellant that the
proceeding below before the Branch Clerk of Court who was appointed commissioner is
null and void, the same deserves but scant consideration in view of the ruling of the
Supreme Court in the case of Gochangco v. CFI Negros Occidental, Branch IV, 157 SCRA
40 holding that a Clerk of Court is authorized to received (sic) evidence ex-parte.

Moreover, it should be noted that appellants (sic) herein, raised questions which were not
raised in the lower court thus cannot (sic) be considered for the first time on appeal
(Anchuelo v. Court of Appeals, 147 SCRA 434)." 9

Petitioner filed a verified "Motion for Reconsideration/New Trial." 10 The new trial aspect
is based on "newly discovered evidence which shows a false affidavit on the supposed
publication of the notice of foreclosure of mortgage when there is no publication at all;"
this allegation is supported by the issue that the "lack of publication could not have been
discovered earlier as it was cleverly hidden through a manufactured xerox copy." 11

On 27 June 1991, the respondent Court promulgated a resolution denying, for lack of merit,
the motion for reconsideration. As to the prayer for new trial, it ruled that:

". . . this Court finds it difficult to perceive that a reputed financial institution, such as
appellee bank, would resort to fabricating a notice of foreclosure of mortgage to prove
publication. Moreover, even if appellee bank did so, appellant should have questioned the
defect during pendency of the case below, as the same could have been discovered even
before the complaint was filed." 12

Criminal Procedure - Rule 112| Page 30 of 80

Hence, this petition for review which focuses on the following grounds:

" A

THE PETITIONER DESERVES TO BE GRANTED A NEW TRIAL ON GROUND OF
NEWLY DISCOVERED EVIDENCE.

B

THE TRIAL CONDUCTED BY A COMMISSIONER, NOT A JUDGE DULY
EMPOWERED BY LAW, IS NULL AND VOID, HENCE, THE TRIAL COURTS
JUDGMENT IS CONSEQUENTLY NULL AND VOID.

C

THE COURT OF APPEALS DID NOT PASS UPON THE ASSIGNED ERRORS
POSITED BY THE PLAINTIFF-APPELLANT IN HIS BRIEF VIOLATING THE
CONSTITUTIONAL REQUIREMENT THAT A DECISION SHALL EXPRESS
CLEARLY AND DISTINCTLY THE FACTS AND THE LAW ON WHICH IT IS
BASED AND THE GUIDELINES SET BY JURISPRUDENCE AND SUPREME
COURT CIRCULARS." 13

After the private respondents filed their Comment 14 to the petition in compliance with the
Resolution of 4 September 1991 and the petitioner submitted his Reply 15 thereto, this
Court gave due course to the petition and required the parties to submit their respective
Memoranda. Petitioner filed his Memorandum on 31 January 1992. 16 Private respondents
earlier manifested that they were adopting their Comment and Manifestation of 13
November 1991 as their Memorandum, but reserved their right to file a "reply
memorandum" should it became necessary. 17 They filed a Reply Memorandum on 5
February 1992. 18

A meticulous study of the pleadings in this case does not sustain the petitioners position,
accordingly, for lack of merit, the petition must fail.

Indeed, as correctly held by the respondent Court, the issue of lack of publication of the
notice of foreclosure of the mortgage was raised only on appeal. Petitioner does not
represent that he directly attacked in his complaint in Civil Case No. 8920 the validity of
the foreclosure because of such lack of notice. His own Statement of the Facts and of the
Case in the instant petition makes no reference to such lack of notice as one, or even just as
a basis for any, of his causes of action in the complaint. He sought the cancellation of the
contract of mortgage because he allegedly never received the amounts indicated in the
promissory notes. Of course, nullity of the mortgage due to absence of consideration is
leagues apart from the nullity of the foreclosure of a mortgage because of non-publication
of the notice of foreclosure.

Additionally, petitioner presented no evidence before the trial court to prove the absence of
publication of the notice despite the fact that private respondents, in their Answer, squarely
pleaded as a defense the foreclosure sale and petitioner s receipt of the "notice of the sale
which was published in a newspaper of general circulation." 19 That the lack of publication
of the notice of foreclosure was never raised in issue by petitioner and that it is not within
the issues framed by the parties in the trial court are then too obvious.

Section 18, Rule 46 of the Rules of Court provides:

"SECTION 18. Questions that may be raised on appeal. Whether or not the appellant
has filed a motion for new trial in the court below, he may include in his assignment of
errors any question of law or fact that has been raised in the court below and which is
within the issues framed by the parties." (Emphasis supplied)

The appellate court then will not consider any ground or objection other than that raised in
the court below, 20 except questions on jurisdiction over the subject-matter which may be
raised at any stage of the proceedings.

The plea for a new trial must likewise be rejected as it was initially sought for only in the
prayer of petitioners Reply Brief. He did not pursue it any further until after the
respondent Court promulgated its challenged decision. New trial before the Court of
Appeals is governed by Rule 53 of the Rules of Court. Section 1 thereof reads:

"SECTION 1. Petition Before a final order or judgment rendered by the Court of
Appeals becomes executory, a motion for a new trial may be filed on the ground of newly
discovered evidence which could not have been discovered prior to the trial in the court
below by the exercise of due diligence and which is of such a character as would probably
change the result. The motion shall be accompanied by affidavits showing the facts
constituting the grounds therefor and the newly discovered evidence."

Petitioners Motion for Reconsideration/New Trial 21 is not accompanied by the affidavit
required by the above rule. Petitioner did not even care to verify it himself. One Gloria B.
Go, who describes herself as the "duly appointed and constituted attorney-in-fact by (sic)
the plaintiff-appellant" made the verification. However, no copy of the power of attorney
appointing her as such is attached to the motion. The alleged newly discovered evidence
would show the supposed absence of publication of the notice of foreclosure which "could
not have been discovered earlier as it was cleverly hidden through a manufactured xerox
copy." 22 This is hollow pretense and a shallow excuse which hardly evokes the Courts
sympathy. As stated earlier, private respondents explicitly alleged in their Answer the fact
of foreclosure of mortgage and petitioners receipt "of the notice of sale which was
published in a newspaper of general circulation." Having been put on guard, prudence
dictates that he should have wasted no time in verifying from the office of the sheriff
concerned if indeed there was such a publication In the light of his principal claim that he
Criminal Procedure - Rule 112| Page 31 of 80

did not receive the consideration for the promissory notes a huge sum and not just a
picayune amount which he signed together with the contract of mortgage to secure it in
1979, it is simply incredible that upon being informed of the foreclosure sale and the
consolidation of the titles of the properties in the name of the highest bidder, herein private
respondent bank, petitioner would simply ignore the shocking information. A person is
presumed to take ordinary care of his concerns. 23 If, as petitioner suggests, the contracts
unlawfully deprived him of his property rights, then his stony silence for years places a
heavy burden on this Courts credulity.

Clearly, therefore, if petitioner only exercised due diligence, he would have easily
discovered the absence of publication of the notice of foreclosure and the mortgage if
such was the fact when the case was still pending with the trial court and, especially,
immediately after his receipt of private respondents Answer.

Petitioners second ground is without merit. In the first place, estoppel bars him from so
raising this question. His petition reveals that he did not object to the continuation of the
reception of evidence before the Branch Clerk of Court after the lifting of the declaration of
default. Even if indeed, as the petitioner contends, the Branch Clerk of Court acted as a
commissioner in receiving the evidence, nothing seems to be irregular about it. Rule 33 of
the Rules of Court allows the court, on its own motion, to direct that issues of a case be
referred to a commissioner. In the second place, what actually happened in this case is that
the court referred the reception of the evidence to the Branch Clerk of Court. In Laluan v.
Malpaya, 24 this Court ruled:

"No provision of law or principle of public policy prohibits a court from authorizing its
clerk of court to receive the evidence of a party litigant. After all, the reception of evidence
by the clerk of court constitutes but a ministerial task the taking down of the testimony
of the witnesses and the marking of the pieces of documentary evidence, if any, adduced by
the party present. This task of receiving evidence precludes, on the part of the clerk of
court, the exercise of judicial discretion usually called for when the other party who is
present objects to questions propounded and to the admission of the documentary evidence
proferred. 25 More importantly, the duty to render judgment on the merits of the case still
rests with the judge who is obliged to personally and directly prepare the decision based
upon the evidence reported. 26

But where the proceedings before the clerk of court and the concomitant result thereof, i.e.,
the judgment rendered by the court based on the evidence presented in such limited
proceedings, prejudice the substantial rights of the aggrieved party, then there exists
sufficient justification to grant the latter complete opportunity to thresh out his case in
court."

Gochangco v. Court of First Instance of Negros Occidental 27 and Monserrate v. Court of
Appeals 28 reiterated this rule. Gochangco, decided by this Court, en banc, overruled the
earlier contrary decision in Lim Tanhu v. Ramolete. 29 Petitioner does not at all claim that
the decision of the trial court would have been different if the reception of the evidence
were made by it, or that his substantial rights were prejudiced by the assailed procedure.
Thus, the contention that it abdicated its judicial responsibility or that procedural due
process was violated merits scant consideration.

Finally, petitioner is not persuasive enough in his last ground. It is not true that the
challenged decision violates the constitutional requirement that a decision shall expressly
and distinctly state the facts and the law on which it is based. Although the respondent
Court merely quotes the findings of the trial court and concludes that" [a]fter a painstaking
perusal of the case" it finds "no reversible error committed by the court a quo." and such
may leave much to be desired, there is no doubt in the mind of this Court that the
respondent Court adopted, in effect, such findings as its own; accordingly, there was
substantial compliance with the stated constitutional requirement. Section 40 of Batas
Pambansa Blg. 129, 30 as amended, provides:

"SECTION 40. Form of decision of appealed cases. Every decision or final resolution of
a court in appealed cases shall clearly and distinctly state the findings of fact and the
conclusions of law on which it is based, which may be contained in the decision or final
resolution itself, or adopted by reference from those set forth in the decision, order, or
resolution appealed from."

The validity of this Section has been sustained in Romero v. Court of Appeals 31 and
Francisco v. Permskul. 32 Nonetheless, even as this Court sustains the action taken by the
respondent Court, it strongly urges all concerned to always bear in mind the admonition of
this Court in the Romero case:

". . . However, the authority given the appellate court to adopt by reference the findings of
fact and conclusions of law from those set forth in the appealed decisions should be
exercised with caution and prudence, because the tendency would be to follow the line of
least resistance by just adopting the findings and conclusions of the lower court without
thoroughly studying the appealed case."

WHEREFORE, finding no reversible error in the challenged decision, the instant petition is
DISMISSED, with costs against petitioner. :

SO ORDERED.

Gutierrez, Jr., Feliciano, Bidin and Romero, JJ., concur.

Criminal Procedure - Rule 112| Page 32 of 80

Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. 102420 December 20, 1994
PROSPERO A. OLIVAS, petitioner,
vs.
OFFICE OF THE OMBUDSMAN (DEPUTY OMBUDSMAN-AFP), and ATTY.
BIENVENIDO C. BLANCAFLOR, in his capacity as Ombudsman
Investigator, respondents.
Fernandez & Olivas for petitioner.

MENDOZA, J .:
This is a petition for certiorari and prohibition to annul the order, dated October 25, 1991,
of respondent Ombudsman Investigator, requiring petitioner to submit his affidavit and
those of his witnesses at the preliminary investigation of a case for unexplained wealth
against petitioner, despite the fact that the Presidential Commission on Good Government,
as complainant, had not reduced its evidence in the form of affidavits and submitted
supporting documents.
Petitioner, Major Gen. Prospero A. Olivas, was Commanding General of the PC
Metrocom. He was retired from the Armed Forces of the Philippines effective February 26,
1986. Shortly thereafter letters were sent to the Presidential Commission on Good
Government, some of them anonymous, charging him with violations of the Anti-Graft and
Corrupt Practices Act (Rep. Act No. 3019) and the Unexplained Wealth Act (Rep. Act No.
1379).
The letters were referred to the New Armed Forces of the Philippines Anti-Graft Board
which the PCGG had created for the purpose of investigating cases of unexplained wealth
and corrupt practices against AFP personnel, whether retired or in the active service.
On August 28, 1986, petitioner was informed by the Bank of the Philippine Islands,
Greenhills Branch, that a freeze order had been issued covering his current and savings
accounts. In addition, a hold order was issued against him by the PCGG.
Petitioner attended the hearings and filed his answer to the charges against him. On April 4,
1988, the Board recommended that the case against petitioner be provisionally dismissed
without prejudice to its revival should new evidence be found.
1

Petitioner was informed of the findings of the Board in a letter sent to him by the Board on
August 15, 1988. The letter read in part:
The Board met and deliberated on your alleged unexplained wealth case
in its regular meeting on 12 August 1988. In the deliberation of your
case, the Board found that there is no prima facie case of unexplained
wealth against you under R.A. 3019, the Anti-Graft and Corrupt
Practices Act and thus resolved to have your case dropped and closed for
insufficiency of evidence.
WHEREFORE, you are hereby officially informed that the Board has
cleared you of the unexplained wealth against you, without prejudice to
have you re-investigated should new evidence on graft and corrupt
practices or unexplained wealth against you be brought to the attention of
the Board.
2

However, the PCGG disapproved the findings and recommendation of the AFP Anti-Graft
Board and ordered a review of the case. On February 6, 1989, it issued subpoenas to
petitioner and to the AFP Anti-Graft Board, directing them to appear before Fiscals Arturo
T. De Guia and Peter T. Tabang on February 21, 1989, at 2:00 p.m.
On April 12, 1989, Fiscal Tabang recommended that the Board's findings be affirmed. In
his memorandum to the PCGG, Fiscal Tabang stated:
After our perusal and consideration of the records of this case, the
Board's resolution of April 4, 1988 appears to be supported by the
evidence on record. Furthermore, the Board, thru its counsel, Col.
Ernesto Punsalang, manifested that there are no new nor additional
evidence against Gen. Olivas (Hearing of February 21, 1988). Likewise,
on March 15, 1989, Gen. Olivas, in his Manifestation and Motion dated
March 1, 1989, further clarified his position and established that the
balance of P32,725.00 (or supposed difference in the Financial Analysis
of Capt. Samuel Padilla), should be reduced to only P5,774.73. To the
Criminal Procedure - Rule 112| Page 33 of 80

said Manifestation and Motion, the Board's counsel offered no
opposition, reply nor comment.
Thus, on the basis of the foregoing premises, it is hereby recommended
that the Board's resolution of April 4, 1988 be affirmed and approved.
3

Apparently the recommendation of Fiscal Tabang was disapproved because petitioner
received another subpoena ordering him to appear before Prosecutor Donato Sor. Suyat, Jr.
on August 18, 1989. In that hearing, petitioner was ordered to explain certain details
regarding documents submitted by him. The directive was later embodied in an order dated
August 21, 1989.
Petitioner agreed, but subsequently he filed a "Motion for Clarification with Alternative
Prayer for Dismissal" in which he complained that, as of that date, no sworn complaint had
been filed against him; that no affidavits and supporting documents had been submitted in
evidence against him to support the charge of unexplained wealth; that the case was
denominated as "AFP
Anti-Graft Board v. MGen. Prospero A. Olivas" and yet the Anti-Graft Board had not filed
a complaint against him but, on the contrary, had recommended the dismissal of the
charges against him; that as there was no valid complaint, there was no legal basis for
conducting a preliminary investigation; and that the PCGG had no jurisdiction over his
person since it had not been alleged, as required under 2(a) of Executive Order No.
1,
4
that he was one of the relatives, subordinates and close associates of former President
Marcos and that the property which was the subject of the investigation was ill-gotten
wealth which had been acquired "by taking undue advantage of [his] public office and/or
using [his] power, authority, influence, connections, or relationship."
Petitioner prayed that a copy of the complaint, together with affidavits and other supporting
documents, if any, be furnished to him, otherwise the preliminary investigation should be
terminated and the freeze and hold orders previously issued lifted.
5

On November 2, 1989, Commissioner Maximo A. Maceren denied petitioner's motion and
gave him five days from notice within which to submit his written
explanation/clarification.
Petitioner filed a motion for reconsideration, citing the fact that the charges against him had
previously been dismissed by the AFP Anti-Graft Board and by Fiscal Tabang and,
therefore, there was no cause of action against him. However, his motion was denied, and
an order was issued directing him to submit his explanation on certain matters as
enumerated in the order dated August 21, 1989.
On February 22, 1990, petitioner filed a "Compliance with Reservations Ex Abundanti
Causa," claiming that he had submitted to the AFP Anti-Graft Board his income tax returns
for the years from 1979 to 1985.
On November 23, 1990, the PCGG indorsed the records of the case, entitled "AFP Anti-
Graft Board, Camp Crame, Quezon City v. Maj. Gen. Prospero Olivas," to the Office of the
Ombudsman.
On April 22, 1991 and June 17, 1991, the Ombudsman issued subpoenas duces tecum to
BIR Commissioner Jose U. Ong ordering him or his representative to appear before the
Investigator and to bring the income tax returns of petitioner for the years from 1978 to
1985.
On June 24, 1991, the BIR Commissioner forwarded petitioner's income tax returns for the
years 1982 and 1983. It certified that the BIR did not have any record of the income tax
returns of petitioner for the years 1978, 1979, 1980, 1981, 1984 and 1985.
On September 12, 1991, petitioner received a subpoena
6
in the case, now entitled
"Presidential Commission on Good Government v. Maj. Gen. Prospero Olivas (Ret.)," for
violation of Rep. Act No. 1379 (Unexplained Wealth), ordering him to appear at a hearing
on September 16, 1991 and to submit his affidavit and those of his witnesses.
7
The
subpoena stated:
A reinvestigation conducted by this office on the findings of the AFP
Anti-Graft Board which was endorsed to us by complainant, Presidential
Commission on Good Government, shows that you have failed to file
income tax returns for the years 1978, 1979, 1980, 1981, 1984, and 1985.
Consequently, a recomputation of this unexplained wealth shows a
balance of P1,477,044.54, instead of P32,725.00 earlier found by the
AFP
Anti-Graft Board. For this purpose, we enclose as Schedule "A," "B,"
and "C" the basis of our revised computation of your unexplained wealth
account.
Petitioner asked for a copy of the sworn complaint against him and to be shown the basis of
the figures contained in the schedules attached to the subpoena, as basis for filing his
counter-affidavit. He asked for 10 days from receipt of the documents within which to
submit his evidence.
On October 25, 1991, respondent Bienvenido C. Blancaflor, Ombudsman Investigator in
the Office of the Ombudsman, issued the assailed order, reiterating the earlier finding that
petitioner had failed to file his income tax returns for the years 1978, 1979, 1980, 1981,
Criminal Procedure - Rule 112| Page 34 of 80

1984, and 1985, with the consequence of invalidating the computation made by the AFP
Anti-Graft Board of respondent's unexplained wealth and significantly increasing it from
P32,725.00 to P1,477,044.54. The dispositive portion of the order reads:
WHEREFORE, premises considered, respondent is again directed for the
last time to file his counter-affidavit and supporting affidavits of his
witnesses, if any, and any other evidence within the inextendible period
of five (5) days from receipt hereof; otherwise, failure on his part to
comply with this Order will compel this office to resolve this case based
on the evidence on record.
Let this case be set for preliminary investigation on November 7, 1991 at
2:00 o'clock in the afternoon.
SO ORDERED.
8

Hence this petition for certiorari and prohibition. Petitioner claims that the respondent
Deputy Ombudsman committed grave abuse of discretion amounting to lack or excess of
jurisdiction in compelling him to submit his counter-affidavit in the absence of a complaint
and affidavits of witnesses against him.
We gave due course to the petition and, after considering the respondents' comment as their
answer, required the parties to file memoranda. They have done that and now we must
decide this case.
The question for decision is whether the petitioner may be compelled to file his counter-
affidavit notwithstanding the fact that no sworn complaint or affidavit has been filed
against him.
The gist of the petitioner's contention is that a sworn complaint is a mandatory requirement
for the purpose of conducting a preliminary investigation. He invokes Rule II, 4 of the
Rules of Procedure of the Office of the Ombudsman which provides:
Sec. 4. Procedure The preliminary investigation of cases falling under
the jurisdiction of the Sandiganbayan and Regional Trial Courts shall be
conducted in the manner prescribed in Section 3, Rule 112 of the Rules of
Court, subject to the following provisions:
a) If the complaint is not under oath or is based only on
official reports, the investigating officer shall require
the complainant or supporting witnesses to execute
affidavits to substantiate the complaints.
b) After such affidavits have been secured, the
investigating officer shall issue an order, attaching
thereto a copy of the affidavits and other supporting
documents, directing the respondent to submit, within
ten (10) days from receipt thereof, his counter-
affidavits and controverting evidence with proof of
service thereof on the complainant. The complainant
may file reply affidavits within ten (10) days after
service of the counter-affidavits.
On the other hand, respondents in their Memorandum argue:
There is a substantial distinction between a criminal complaint filed by a
private complainant with the Office of the Ombudsman and one endorsed
to the same Office by another Government agency such as the PCGG, the
NBI, the COA, and the AFP or PNP. In the case of a private complainant,
sub-paragraph (a), Section 4 of Administrative Order No. 07 provides
that the "investigating officer shall require the complainant or supporting
witnesses to execute affidavits to substantiate the complaints." On the
other hand, in the instant case which was referred to the Office of the
Ombudsman by the PCGG, Respondents maintain that the letter dated
November 23, 1991 of the PCGG to the Office of the Ombudsman
transmitting the entire records of the case to respondents' Office serve as
the complaint and the PCGG, as the complainant, in compliance with
existing procedure on preliminary investigation.
In support of their contention, they cite Rule I, 3 of the Rules of Procedure of the Office
of the Ombudsman, which states:
Sec. 3. Form of complaints, grievances or requests for
assistance. Complaints may be in any form, either verbal or in
writing. For a speedier disposition of the complaint, however, it is
preferable that it be in writing and under oath. A complaint which does
not disclose the identity of the complainant will be acted upon only if it
merits appropriate consideration, or contains sufficient leads or parti-
culars to enable the taking of further action.
Grievances or requests for assistance may likewise be verbal or in
writing. In any case, the requesting or complaining party must indicate
his address and telephone number, if any.
Criminal Procedure - Rule 112| Page 35 of 80

Respondents contend that the present proceedings are merely a continuation of the
investigation conducted by the PCGG and so the petitioner cannot claim ignorance of the
charges against him and that he freely participated in the proceedings before the PCGG
even without any affidavit or complaint. They call attention to the fact that this case was
indorsed by the PCGG, after this Court had ruled in Cojuangco, Jr. v. PCGG
9
that the
PCGG, after acting as law enforcer by gathering evidence against a party and filing a civil
complaint against him, could not thereafter act as a judge for the purpose of determining in
a preliminary investigation whether there was probable cause for prosecuting the same
party.
Additionally, respondents contend that the procedure outlined in Rule II, 4 of the Rules
of Procedure of the Office of the Ombudsman refers to preliminary investigations
conducted in criminal cases, whereas proceedings under Rep. Act No. 1379 are civil in
nature.
We find for petitioner. A useful starting point for a discussion of the issue in this case is the
decision in Cojuangco, Jr. v. PCGG
10
in which we described the general power of
investigation of the PCGG as consisting of two stages: the first stage, called the criminal
investigation, is a fact-finding inquiry conducted by law enforcement agents, whereby they
gather evidence and interview witnesses and afterwards assess the evidence so that, if they
find sufficient basis, they can file a complaint for the purpose of preliminary investigation.
The second stage, called the preliminary investigation stage, is conducted for the purpose
of ascertaining if there is sufficient evidence to bring a person to trial.
11
We held in that
case that, having found petitioner prima facie guilty of violation of Rep. Act No. 3019, for
which reason it issued a freeze order against him and filed a civil complaint for recovery of
alleged ill-gotten wealth, the PCGG could not thereafter act as an impartial judge in
conducting a preliminary investigation of criminal complaints based on the same facts
found by it to constitute prima facie evidence against petitioner. We there said:
In our criminal justice system, the law enforcer who conducted the
criminal investigation, gathered the evidence and thereafter filed the
complaint for the purpose of preliminary investigation cannot be allowed
to conduct the preliminary investigation of his own complaint. It is to say
the least arbitrary and unjust.
It is in such instances that We say one cannot be "a prosecutor and judge
at the same time." Having gathered the evidence and filed the complaint
as a law enforcer, he cannot be expected to handle with impartiality the
preliminary investigation of his own complaint, this time as a public
prosecutor.
12

In accordance with this ruling, the PCGG indorsed the case at bar to the Office of the
Ombudsman. It may be assumed that the PCGG had found sufficient evidence against
petitioner to warrant submitting the case for preliminary investigation. For the rationale
of Cojuangco, Jr. v. PCGG is that the role of law enforcer must not be confounded with
that of the public prosecutor who must determine whether there was probable cause for
filing the case in court. In this case, the PCGG had issued a freeze order against petitioner's
bank accounts and a hold order which it refused to lift despite the fact that the AFP panel
had provisionally cleared him.
Respondents justify their order to petitioner to submit his evidence, even though there is no
formal complaint, on the basis of Rule I, 3 of the Rules of Procedure of the Office of the
Ombudsman which provides that complaints filed with that office may be "in any form,
either verbal or in writing." The cases which the Ombudsman may investigate, however,
are not limited to criminal cases. They include those involving acts and omissions of public
officials which are alleged to be merely "unjust, improper or inefficient."
13
It is to such
cases that Rule I, 3 applies primarily. Indeed, as designated "protectors of the people,"
the Ombudsman and his deputies are required by the Constitution
14
to "act promptly on
complaints filed in any form or manner against public officials and employees."
Even in investigations looking to the prosecution of a party, Rule I, 3 can only apply to
the general criminal investigation, which in the case at bar was already conducted by the
PCGG. But after the Ombudsman and his deputies have gathered evidence and their
investigation has ceased to be a general exploratory one and they decide to bring the action
against a party, their proceedings become adversary and Rule II, 4(a) then applies. This
means that before the respondent can be required to submit counter-affidavits and other
supporting documents, the complainant must submit his affidavit and those of his
witnesses. This is true not only of prosecutions of graft cases under Rep. Act No. 3019 but
also of actions for the recovery of unexplained wealth under Rep. Act No. 1379, because
2 of this latter law requires that before a petition is filed there must be a "previous inquiry
similar to preliminary investigation in criminal cases."
Indeed, since a preliminary investigation is designed to screen cases for trial, only evidence
may be considered. While reports and even raw information may justify the initiation of an
investigation, the stage of preliminary investigation can be held only after sufficient
evidence has been gathered and evaluated warranting the eventual prosecution of the case
in court. As this Court held in Cojuangco, Jr. v. PCGG.
Although such a preliminary investigation is not a trial and is not
intended to usurp the function of the trial court, it is not a casual affair.
The officer conducting the same investigates or inquires into the facts
concerning the commission of the crime with the end in view of
determining whether or not an information may be prepared against the
accused. Indeed, a preliminary investigation is in effect a realistic judicial
appraisal of the merits of the case. Sufficient proof of the guilt of the
accused must be adduced so that when the case is tried, the trial court
Criminal Procedure - Rule 112| Page 36 of 80

may not be bound as a matter of law to order an acquittal. A preliminary
investigation has then been called a judicial inquiry. It is a judicial
proceeding. An act becomes judicial when there is opportunity to be
heard and for the production and weighing of evidence, and a decision is
rendered thereon.
15

The lack of a complaint and affidavits cannot be excused on the plea that this case
originated in anonymous letters sent to the PCGG. Because of leads furnished by those
letters it would seem that the PCGG has found sufficient evidence justifying its demand to
petitioner to explain. It is incumbent upon it as complainant to reduce the evidence into
affidavits. For example, the subpoena issued to petitioner was accompanied by schedules
showing how petitioner was found to have unexplained wealth amounting to
P1,477,044.54. The figures contained in these schedules must be verified under oath by
PCGG investigators who must certify to facts either of their own knowledge or from
official records. It is only after the PCGG has submitted its affidavits and other documents
that petitioner may be required to explain, also under oath. It is from such affidavits and
counter-affidavits that respondents can then determine whether there is probable cause for
bringing the case in court against petitioner.
This is a requirement not only of Rule II, 4(a) of respondents' Rules of Procedure but also
of due process in adversary proceedings. While those engaged in the investigation of graft
and corruption in the government must be able to respond swiftly to complaints concerning
public office, they must at the same time take care that their investigation is not used to
harass or wreak vengeance on those in public office. This was an abiding concern of the
Constitutional Commission
16
to which we must show equal concern.
To conclude, the PCGG has become the complainant in this case. Its case must stand or fall
on the evidence it has. Petitioner cannot be compelled to submit his evidence in the form of
counter-affidavits and supporting documents before the PCGG, as complainant, has
embodied its evidence in affidavits or sworn statements.
WHEREFORE, the petition is GRANTED and the questioned order dated October 25,
1991 is SET ASIDE.
SO ORDERED.
Narvasa, C.J., Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason,
Puno, Vitug and Kapunan, JJ., concur.
Feliciano, J., is on leave.

Criminal Procedure - Rule 112| Page 37 of 80

THIRD DIVISION

[G.R. Nos. 138859-60. February 22, 2001.]

ALVAREZ ARO YUSOP, Petitioner, v. The Honorable SANDIGANBAYAN (First
Division),Respondent.

D E C I S I O N


PANGANIBAN, J .:


The right of a person to preliminary investigation is recognized by the law and is governed
by the Rules of Court. However, the failure to accord this right does not ipso facto result in
the dismissal of the information; the case is merely suspended, and the prosecutor directed
to conduct the proper investigation.

Before us is a Petition for Certiorari under Rule 65 of the Rules of Court, assailing two
Orders 1 of the Sandiganbayan, 2 both dated February 15, 1999. The first Order rejected
the attempt of petitioner to stop his arraignment in Criminal Case Nos. 24524-25, on the
ground that he had been denied the right to a preliminary investigation. In the assailed
second Order, the Sandiganbayan directed that a plea of not guilty be entered for all the
accused, including herein petitioner.
The Facts


Acting on an Affidavit-Complaint 3 filed by a certain Erlinda Fadri, the Office of the
Ombudsman-Mindanao issued an Order 4 dated September 19, 1995, naming the following
as respondents: Benjamin Arao, Frederick Winters, Pelaez Pantaran, Eduardo Dablo, Efren
Sissay and the city jail warden of Pagadian City. The Order also required respondents,
within ten days from receipt thereof, to submit their counter-affidavits and other pieces of
controverting evidence.

The Office of the Ombudsman for Mindanao issued a Resolution dated January 15, 1998, 5
recommending the prosecution of "the aforenamed respondents" for violation of Article
269 of the Revised Penal Code and Section 3-a in relation to Section 3-e of Republic Act
No. 3019 as amended. Significantly, the name of Petitioner Alvarez A. Yusop was included
as one of the persons to be prosecuted, although he was not one of the original respondents
mentioned in the Order of September 19, 1995. Ombudsman Aniano A. Desierto approved
the recommendation.

Accordingly, two Informations were filed with the Sandiganbayan. They were docketed as
Criminal Case Nos. 24524 (violation of Section 3-a of RA 3019) and 24525 (unlawful
arrest under Article 269 of the Revised Penal Code).

On April 16, 1998, an Order of Arrest was issued by the Sandiganbayan in Criminal Case
No. 24524. Petitioner, however, posted a bail bond before the Regional Trial Court of
Dipolog City on May 20 of the same year. On the same day, he filed a "Motion To Remand
Case To The Ombudsman Mindanao For Preliminary Investigation."

In a Resolution dated June 8, 1998, the Sandiganbayan denied the Motion of petitioner for
his alleged failure to submit himself to the jurisdiction of the anti-graft court.

On August 8, 1998, petitioner filed a Motion to Dismiss, grounded again on the lack of
preliminary investigation. In an Order dated September 22, 1998, the Sandiganbayan
resolved not to take action on the Motion, because petitioner had not yet submitted himself
to its jurisdiction insofar as Criminal Case No. 24525 was concerned.

On the scheduled arraignment on February 15, 1999, petitioner reiterated his claim that he
had not been accorded preliminary investigation. In its two assailed Orders, the
Sandiganbayan rejected his claim and proceeded with the arraignment.

Hence, this recourse. 6

Ruling of the Sandiganbayan

The Sandiganbayan rejected petitioners plea for preliminary investigation in this wise:

"This morning, the accused herein appeared for arraignment duly represented by their
counsel. Before proceeding, Atty. Omar A. Rivera appearing in behalf of accused Yusop
informed this court of his reservations about proceeding with the arraignment this morning,
primarily on the ground that accused Yusop did not undergo preliminary investigation,
with the additional claim that he had not been furnished any notice nor was he informed of
the proceedings before the Ombudsman with respect to these cases. It would appear that
one of the reasons [therefor] is that the accused despite notice of the existence of the
accusation against him in Criminal Case No. 24525, had not given any timely notice nor
any statement of any alleged inadequacy of the proceeding regarding the filing of the
Information herein; thus, the Court is not persuaded that the claim of the accused Yusop
with regard to the inadequacy of the proceedings as against him could still be validly
entertained at this time. This is more particularly significant under Section 27 of Republic
Act 6770 and . . . Criminal Cases 24524 and 24525 refer to the same incident although the
prosecution, for its part, has filed Informations under different statutes covering the same
incident. Thus, the claim of accused Yusop that he was not notified with respect to one of
the cases on an identical set of facts herein is not [of] particular significance since this
would be indulging in a superfluity.
Criminal Procedure - Rule 112| Page 38 of 80

x x x


"Thus, in view of all the following, the Court will now proceed to the arraignment of the
accused herein."
The Issue


Although the parties did not specify the issue in this case, it is clear from their submissions
that they are asking this Court to resolve this question: Whether the Sandiganbayan, despite
being informed of the lack of preliminary investigation with respect to petitioner, in
Criminal Case No. 24524, committed grave abuse of discretion in proceeding with his
arraignment.
The Courts Ruling


The Petition is meritorious in part. While petitioner is entitled to preliminary investigation,
the case against him should not be dismissed.

Main Issue:

Preliminary Investigation

Preliminary investigation is "an inquiry or proceeding to determine whether there is
sufficient ground to engender a well-founded belief that a crime has been committed and
the respondent is probably guilty thereof, and should be held for trial." 7 The Court
explained that the rationale of a preliminary investigation is to "protect the accused from
the inconvenience, expense and burden of defending himself in a formal trial unless the
reasonable probability of his guilt shall have been first ascertained in a fairly summary
proceeding by a competent officer." 8

The Rules of Court requires such investigation before an information for an offense
punishable by at least four years, two months and one day may be filed in court. 9 The old
Rules, on the other hand, mandates preliminary investigation of an offense cognizable by
the regional trial court. 10

Petitioner is charged in Criminal Case No. 24524 with violation of Section 3-a of RA 3019.
Such offense is punishable with among other penalties, imprisonment of six years and one
month to fifteen years. 11 Under the aforecited Rules, whether in the old or the revised
version, he is entitled to a preliminary investigation.

It is undisputed, however, that before the Information against petitioner was filed, no
preliminary investigation had been conducted. In fact, the Office of the Ombudsman
admitted that "petitioner was denied of his right to preliminary investigation." 12

We find no basis for the Sandiganbayans ruling that petitioner "had not given timely
notice nor any statement of the alleged inadequacy of the proceeding regarding the filing of
the Information."

First, there was no showing that petitioner was notified of the charges filed by Erlinda
Fadri. As earlier noted, he had not been named as a respondent in the September 19, 1995
Order of the Office of the Ombudsman in Mindanao. His name did not even appear in the
caption of its January 15, 1998 Resolution, 13 which recommended the filing of charges
against the accused. Indeed, in his Compliance with the August 26, 1998 Sandiganbayan
Resolution, 14 Special Prosecution Officer Diosdado V. Calonge manifested that petitioner
"was not notified of the proceedings of the preliminary investigation and was accordingly
not given the opportunity to be heard thereon." 15

After learning of the filing of the Information against him when he was served a Warrant of
Arrest, petitioner did not dally. He immediately informed the Sandiganbayan that no
preliminary investigation had been conducted in regard to him. Several months later,
moments before his arraignment, he reiterated his prayer that the preliminary investigation
be conducted. In this light, the Sandiganbayan erred in saying that he had not given the
court timely notice of this deficiency.cralawlibrary : red

Even assuming that prior to the filing of the Information,. petitioner had known that the
proceedings and the investigation against his co-accused were pending, he cannot be
expected to know of the investigators subsequent act of charging him. Precisely, he had
not been previously included therein and, consequently, he had not been notified thereof.

In Go v. Court of Appeals, 16 this Court held that "the right to preliminary investigation is
waived when the accused fails to invoke it before or at the time of entering a plea at
arraignment." Conversely, if the accused does invoke it before arraignment, as the
petitioner did in this case, the right is not waived.

Neither did the filing of a bail bond constitute a waiver of petitioners right to preliminary
investigation. Under Section 26, Rule 114 of the Revised Rules of Criminal Procedure,"
[a]n application for or admission to bail shall not bar the accused from challenging the
validity of his arrest or the legality of the warrant issued therefor, or from assailing the
regularity or questioning the absence of a preliminary investigation of the charge against
him, provided that he raises them before entering his plea. . . ."

We stress that the right to preliminary investigation is substantive, not merely formal or
technical. To deny it to petitioner would deprive him of the full measure of his right to due
process. 17 Hence, preliminary investigation with regard to him must be conducted.

Criminal Procedure - Rule 112| Page 39 of 80

We disagree with the Sandiganbayans reliance on Section 27 of Republic Act 6770. 18
This provision cannot justify the evasion of the requirement set forth in the Rules of Court
for conducting preliminary investigation. The law does not sanction such interpretation, for
it deals merely with the finality of orders, directives and decisions of the Office of the
Ombudsman not the deprivation of the substantive right to a preliminary investigation.
Moreover, petitioner cannot be bound by the Ombudsmans January 15, 1998 Resolution,
which recommended the filing of charges. He was not a party to the case and was not
accorded any right to present evidence on his behalf.

In any event, even the Ombudsman agrees that petitioner was deprived of this right and
believes that the former "has the duty . . . to see to it that the basic rudiments of due process
are complied with." 19 For its part, the Sandiganbayan opted to remain silent when asked
by this Court to comment on the Petition.

Dismissal of the Charges

Not Justified

Petitioner also prays that the cases against him be dismissed for lack of preliminary
investigation. 20 We disagree. In the first place, nowhere in the Revised Rules of Criminal
Procedure, or even the old Rules, is there any mention that this lack is a ground for a
motion to quash. 21 Furthermore, it has been held that responsibility for the "absence of a
preliminary investigation does not go to the jurisdiction of the court but merely to the
regularity of the proceedings." 22 We reiterate the following ruling of the Court in People
v. Gomez:

"If there were no preliminary investigations and the defendants, before entering their plea,
invite the attention of the court to their absence, the court, instead of dismissing the
information, should conduct such investigation, order the fiscal to conduct it or remand the
case to the inferior court so that the preliminary investigation may be conducted." 23

In sum, Criminal Case No. 24524 must be suspended with respect to petitioner even if the
case is already undergoing trial, because" [t]o reach any other conclusion here, that is, to
hold that petitioners rights to a preliminary investigation and to bail were effectively
obliterated by evidence subsequently admitted into the record would be to legitimize the
deprivation of due process and to permit the government to benefit from its own wrong or
culpable omission and effectively to dilute important rights of accused persons well-nigh to
the vanishing point." 24

WHEREFORE, the Petition is partially GRANTED. The assailed Orders are REVERSED,
and the Office of the Ombudsman is hereby ORDERED to conduct forthwith a preliminary
investigation of the charge of violation of Section 3-a of RA 3019 against Petitioner
Alvarez Aro Yusop. The trial on the merits of Criminal Case No. 24524 shall be
SUSPENDED in regard to petitioner until the conclusion of the preliminary investigation.
No pronouncement as to costs.

SO ORDERED.chanrob1es virtua1 law library

Melo, Vitug, Gonzaga-Reyes and Sandoval-Gutierrez, JJ., concur.

Criminal Procedure - Rule 112| Page 40 of 80

SECOND DIVISION
G.R. No. 59241-44 July 5, 1989
PEDRO TANDOC, ROGELIO ERCELLA, RUDY DIAZ, JUAN ROSARIO, AND
FRED MENOR, Petitioners, vs. THE HONORABLE RICARDO P. RESULTAN, in
his capacity as Presiding Judge of the City Court of San Carlos City (Pangasinan),
ARNULFO PAYOPAY, MANUEL CANCINO, and CONRADO PAYOPAY,
SR., Respondents.
PADILLA, J .:
Petition for certiorari assailing the Orders
1
of the City Court of San Carlos City,
Pangasinan, dated 13 August 1981, finding reasonable ground to believe that petitioners
Pedro Tandoc, Rogelio Ercella, Rudy Diaz, Juan Rosario and Fred Menor had probably
committed the crimes of "Trespass to Dwelling", "Serious Physical Injuries", "Less Serious
Physical Injuries" and "Grave Threats", docketed as Criminal Cases Nos. 2105, 2106, 2107
and 2108; and the Order
2
dated 21 October 1981, denying petitioners' motion for a re-
investigation of the complaint by the Office of the City Fiscal of San Carlos City. The
incident which gave rise to the petition at bar is as follows:
On 19 October 1980, a criminal complaint docketed as I.S. No. 80- 198 was lodged with
the Office of the City Fiscal of San Carlos City, Pangasinan, with the charges of "Serious
Physical Injuries", filed by Bonifacio Menor against respondent Arnulfo (Arnold) Payopay;
"Slight Physical Injuries", filed by Fred de la Vega against respondent Beda Acosta, and
"Trespass to Dwelling", filed by Pacita Tandoc against respondents Arnulfo (Arnold)
Payopay, Beda Acosta, Manuel Cancino, Nadong Fernandez and Arturo
Syloria.chanroblesvirtualawlibrary
Pending the resolution of said complaint, Arnulfo (Arnold) Payopay and his father Conrado
Payopay, Sr., together with Manuel Cancino, also filed a complaint on 2 December
1980
3
with the Office of the City Fiscal, San Carlos City, Pangasinan, against Pedro
Tandoc, Pacita Tandoc, Rudy Diaz, Fred Menor, Rogelio Ercella, Juan Rosario and Fred de
la Vega, with the charges of "Trespass to Dwelling", "Serious Oral Defamation", "Grave
Threats" and "Physical Injuries", docketed as I.S. No. 80-233.chanroblesvirtualawlibrary
On 10 December 1980, the investigating fiscal found reasonable ground to believe that
respondents Arnulfo (Arnold) Payopay, Beda Acosta, Manuel Cancino, Nadong Fernandez
and Arturo Syloria committed the crimes charged in I.S. 80-198,
4
thus
The evidence in the above-cited complaints tend to show that at about 6:35 o'clock in the
afternoon of October 19,1980, at the house of Pacita B. Tandoc, situated at Rizal Avenue,
SCC, the respondents entered the store and dinning [sic] room of the complainant without
her permission. There was a sort of altercation between the complainant and respondent,
Arnold Payopay, regarding the stoning of the store and house of complainant, Tandoc. In
the course of their altercation, respondent Arnold Payopay picked up stones and struck the
complainant Tandoc but instead her helper Bonifacio Menor was hit and suffered physical
injuries which according to the medico-legal certificate will heal for [sic] more than thirty
days. She further declared that respondent, Beda Acosta, who was behind Arnold Payopay
picked up stone [sic] struck her but unfortunately her helper, Fred de la Vega, was hit and
suffered injuries which injury will heal in less than nine days according to the medical
certificate. The matter was reported to the Barangay Chairman of the place and to the
Office of the Station Commander. In support of the complaint are the sworn statements of
Bonifacio Menor, Fred de la Vega and Barangay Chairman Hermogenes
Salangad.chanroblesvirtualawlibrary
xxx xxx xxx
After evaluating the evidence on hand and the entries in the police blotter the undersigned
finds that there is reasonable ground to believe that the crime of Trespass To Dwelling, has
been committed by all respondents; Serious Physical Injuries, has been committed by
respondent Arnold Payopay; and Slight Physical Injuries, has been committed by
respondent Beda Acosta. The latter case has not been referred to the Barangay Chairman as
the case will soon prescribe and that the affidavit of complainant was just endorsed on
November 28, 1980. I most respectfully recommend that the corresponding Informations
be filed in Court.
From the aforequoted resolution, respondents filed a Motion for Reconsideration, but the
same was denied in a resolution dated 5 January 1981.
5
Consequently, the corresponding
informations for "Slight Physical Injuries", "Trespass to Dwelling" and "Serious Physical
Injuries" were filed with the City Court of San Carlos City, docketed as Criminal Cases
Nos. 1992, 2000 and 2001, respectively.
6

With respect to the criminal complaint docketed as I.S. No. 80-233 filed by Arnulfo
(Arnold) Payopay and Manuel Cancino against petitioners for "Serious Oral Defamation",
"Grave Threats" and "Physical Injuries", the Office of the City Fiscal recommended the
dropping of said charges on the ground that they "were found to be in a [sic] nature of a
countercharge, the same having been filed after more than one (1) month from the date of
the alleged incident of 19 October 1980." However, as to the charge of "Trespass to
Dwelling" filed by Conrado Payopay, Sr. against Pedro Tandoc, a prima facie case was
found by the investigating fiscal.
7
Thus, on 28 January 1981, an informations
8
for
"Trespass to Dwelling" was filed with the City Court of San Carlos City, docketed as
Criminal Case No. 2017.chanroblesvirtualawlibrary
Criminal Procedure - Rule 112| Page 41 of 80

On 28 July 1981, respondents Arnulfo (Arnold) Payopay, Conrado Payopay, Sr. and
Manuel Cancino, directly lodged with the City Court of San Carlos City the following
criminal complaints against herein petitioners,
9
to wit:
- Criminal Case No. 2105, entitled "People v. Pedro Tandoc, Rogelio Ercella, Rudy Diaz,
Juan Rosario and Fred Menor", for Serious Physical Injuries, filed by Arnulfo (Arnold)
Payopay as private complainant.chanroblesvirtualawlibrary
- Criminal Case No. 2106, entitled "People vs. Rudy Diaz, Juan Rosario and Fred Menor",
for Trespass to Dwelling, filed by Conrado Payopay, Sr. as private
complainant.chanroblesvirtualawlibrary
- Criminal Case No. 2107, entitled "People vs. Pedro Tandoc, Rudy Diaz, Juan Rosario and
Fred dela Vega", for Less Serious Physical Injuries, filed by Manuel Cancino as private
complainant.chanroblesvirtualawlibrary
- Criminal Case No. 2108, entitled "People vs. Pedro Tandoc, Rudy Diaz, Rogelio Ercella,
Juan Rosario & Fred Menor", for Grave Threats to Kill, with Arnulfo (Arnold) Payopay as
private complainant.chanroblesvirtualawlibrary
On 13 August 1981, the City Court of San Carlos City issued several Orders
10
which are
the subject of the petition at bar, whereby the court a quo, after conducting a preliminary
examination of the four (4) aforementioned cases, found reasonable ground to believe that
the offenses charged may have been committed by the accused (now petitioners) and that
the latter were probably guilty thereof. The issuance of warrants of arrest was ordered
against herein petitioners, although said warrants were later suspended upon motion of the
petitioners. A motion for reconsideration of the aforesaid resolution was filed by
petitioners, but it was denied.
11
They moved for a re-investigation of the cases by the
Office of the City Fiscal. On 21 October 1981, the court a quo denied said
motion.
12
Petitioners sought a reconsideration of said order, but it was likewise
denied,
13
hence, this petition.
The sole issue to be resolved in the case at bar is whether or not the city court has the
power and authority to conduct anew a preliminary examination of charges, which were
previously the subject of a preliminary investigation conducted by the Office of the City
Fiscal and thereafter dismissed by the latter.chanroblesvirtualawlibrary
A preliminary investigation is intended to protect the accused from the inconvenience,
expense and burden of defending himself in a formal trial unless the reasonable probability
of his guilt shall have been first ascertained in a fairly summary proceeding by a competent
officer. It is also intended to protect the state from having to conduct useless and expensive
trials.
14

There are two (2) stages in a preliminary investigation; first, the preliminary examination
of the complainant and his witnesses prior to the arrest of the accused to determine whether
or not there is ground to issue a warrant of arrest; second, preliminary investigation proper,
wherein the accused, after his arrest, is informed of the complaint filed against him and is
given access to the testimonies and evidence presented, and he is also permitted to
introduce evidence in his favor. The purpose of this stage of investigation is to determine
whether or not the accused should be released or held before trial.
15

Preliminary investigation is merely inquisitorial, and it is often the only means of
discovering the persons who may be reasonably charged with a crime, to enable the fiscal
to prepare his complaint or information.
16
It is not a trial of the case on the merits and has
no purpose except that of determining whether a crime has been committed and whether
there is probable cause to believe that the accused is guilty thereof, and it does not place
the person against whom it is taken in jeopardy.
17

Under Section 10, Rule 112 of the 1964 Revised Rules of Criminal Procedure, in cases
falling within the exclusive jurisdiction of an inferior court, as well as in cases within the
concurrent jurisdiction of the city courts or municipal courts with Courts of First Instance,
the accused was not entitled to be heard in a preliminary investigation proper.
18
The reason
behind this rule is as follows.
Indeed, balancing the considerations, the withholding of the right of the preliminary
investigation from the accused in cases triable by the inferior courts involving offenses
with lower penalties than those exclusively cognizable by courts of first instance, could not
be termed an unjust or unfair distinction. The loss of time entailed in the conduct of
preliminary investigations, with the consequent extension of deprivation of the accused's
liberty, in case he fails to post bail, which at times outlasts the period of the penalty
provided by law for the offense, besides the mental anguish suffered in protracted
litigations, are eliminated with the assurance of a speedy and expeditious trial for the
accused, upon his arraignment (without having to undergo the second stage of the
preliminary investigation), and of a prompt verdict on his guilt or innocence. On the other
hand, the so-called first stage of preliminary investigation or the preliminary examination,
conducted by the duly authorized officer, as borne out by the examination and sworn
written statement of the complainants and their witnesses, generally suffices to establish
the existence of reasonable ground to charge the accused with having committed the
offense complained of.
19

The preliminary examination prior to the issuance of a warrant of arrest and the sworn
statements of the complainant and his witnesses are sufficient to establish whether "there is
a reasonable ground to believe that an offense has been committed and the accused is
probably guilty thereof', to prevent needless waste or duplication of time and effort.
20

Criminal Procedure - Rule 112| Page 42 of 80

In the case at bar, the offenses charged against petitioners for "Trespass to Dwelling",
"Grave Threats" and "Physical Injuries" were all within the jurisdiction of the City Court of
San Carlos City. Under the circumstances, the complaints could be filed directly with the
City Court which is empowered to conduct a preliminary examination for purposes of
issuance of warrants of arrest, and thereafter to proceed with the trial of the cases on the
merits. The preliminary investigation proper conducted by the Office of the City Fiscal
could have been dispensed with. Neither did the earlier order of dismissal of the complaints
by the investigating fiscal bar the filing of said complaints with the city court on the ground
of double jeopardy.
... . The result of a preliminary investigation can neither constitute nor give rise to the
defense of double jeopardy in any case, because such preliminary investigation is not and
does not in itself constitute a trial or even any part thereof. The only purpose of a
preliminary investigation is to determine, before the presentation of evidence by the
prosecution and by the defense, if the latter party should wish to present any, whether or
not there are reasonable grounds for proceeding formally and resolutely against the accused
(People vs. Peji Bautista, G.R. No. 45739, April 25, 1939; U.S. vs. Yu Tuico, 34 Phil. 209).
In order that the defense of jeopardy may lie, there must be a former judgment, either of
acquittal or of conviction, rendered by a court competent to render the same, not only by
reason of the offense committed, which must be the same or at least comprised within it,
but also by reason of the place where it was committed. Under the established facts it
cannot be stated that the same circumstances exist in the case under consideration.
Consequently, the defense of double jeopardy is untenable.
21

As long as the offense charged has not prescribed, the city court has the power and
authority to conduct a preliminary examination and proceed with the trial of the case
properly within its jurisdiction. The prescriptive period of a crime depends upon the
penalty imposed by law. The penalty of arresto mayor is imposed by law for the crimes of
"Trespass to Dwelling",
22
"Grave Threats", which is not subject to a condition
23
and "Less
Serious Physical Injuries" which has incapacitated the offended party for ten (10) days or
shall require medical attendance for the same period;
24
for "Serious Physical Injuries"
which has caused illness or incapacity for labor for more than thirty (30) days, the penalty
is arresto mayor in its maximum period to prision correccional in its minimum
period.
25
The prescriptive period of offenses punishable by arresto mayor is five (5) years,
while crimes punishable by correctional penalties prescribe in ten (10) years.
26
The incident
at bar occurred on 19 October 1980, while the complaints were filed with the City Court
nine (9) months from said occurrence or on 28 July 1981, thus, the crimes charged had not
yet prescribed under the given facts.chanroblesvirtualawlibrary
From the order of the City Court finding reasonable ground to believe that a crime was
committed and the accused probably guilty thereof, petitioners cannot seek a re-
investigation by the Office of the City Fiscal. The re-investigation sought by petitioners
applies only to instances where a case is cognizable by the Court of First Instance but filed
with the City Court for purposes of preliminary investigation only and thereafter dismissed
by the latter on the ground that no prima facie case exists. However, for cases cognizable
by inferior courts and filed with the same not only for purposes of preliminary
investigation but for trial on the merits, the Office of the City Fiscal has no authority to re-
investigate.chanroblesvirtualawlibrary
WHEREFORE, the petition is hereby DISMISSED. Costs against
petitioners.chanroblesvirtualawlibrary
SO ORDERED.
Melencio-Herrera, Paras, Sarmiento and Regalado, JJ., .

Criminal Procedure - Rule 112| Page 43 of 80

EN BANC
G.R. Nos. 162144-54 : November 13, 2012
PEOPLE OF THE PHILIPPINES, Petitioner, v. HON. MA. THERESA L. DELA
TORRE- YADAO, in her capacity as Presiding Judge, Branch 81, Regional Trial
Court of Quezon City, HON. MA. NATIVIDAD M. DIZON, in her capacity as
Executive Judge of the Regional Trial Court of Quezon City, PANFILO M. LACSON,
JEWEL F. CANSON, ROMEO M. ACOP, FRANCISCO G. ZUBIA, JR., MICHAEL
RAY B. AQUINO, CEZAR O. MANCAO II, ZOROBABEL S. LAURELES, GLENN
G. DUMLAO, ALMARIO A. HILARIO, JOSE ERWIN T. VILLACORTE, GIL C.
MENESES, ROLANDO ANDUYAN, JOSELITO T. ESQUIVEL, RICARDO G.
DANDAN, CEASAR TANNAGAN, VICENTE P. ARNADO, ROBERTO T.
LANGCAUON, ANGELITO N. CAISIP, ANTONIO FRIAS, CICERO S.
BACOLOD, WILLY NUAS, JUANITO B. MANAOIS, VIRGILIO V. PARAGAS,
ROLANDO R. JIMENEZ, CECILIO T. MORITO, REYNALDO C. LAS PINAS,
WILFREDO G CUARTERO, ROBERTO O. AGBALOG, OSMUNDO B. CARINO,
NORBERTO LASAGA, LEONARDO GLORIA, ALEJANDRO G LIWANAG,
ELMER FERRER and ROMY CRUZ, Respondents.
D E C I S I O N
ABAD, J .:
This case, which involves the alleged summary execution of suspected members of the
Kuratong Bale/eng Gang, is once again before this Court this time questioning, among
other things, the trial qmrt's determination of the absence of probable cause and its
dismissal of the criminal actions.
1
rll
The Facts and the Case
In the early morning of May 18, 1995, the combined forces of the Philippine National
Police's Anti-Bank Robbery and Intelligence Task Group (PNP ABRITG) composed of
Task Force Habagat (then headed by Police Chief Superintendent Panfilo M. Lacson),
Traffic Management Command ([TMC] led by then Police Senior Superintendent
Francisco G. Zubia, Jr.), Criminal Investigation Command (led by then Police Chief
Superintendent Romeo M. Acop ), and National Capital Region Command (headed by then
Police Chief Superintendent Jewel F. Canson) killed 11 suspected members of the
Kuratong Baleleng Gang
2
rllalong Commonwealth Avenue in Quezon City.
Subsequently, SPO2 Eduardo Delos Reyes of the Criminal Investigation Command told the
press that it was a summary execution, not a shoot-out between the police and those who
were slain. After investigation, the Deputy Ombudsman for Military Affairs absolved all
the police officers involved, including respondents Panfilo M. Lacson, Jewel F. Canson,
Romeo M. Acop, Francisco G. Zubia, Jr., Michael Ray B. Aquino, Cezar O. Mancao II,
and 28 others (collectively, the respondents).
3
rll On review, however, the Office of the
Ombudsman reversed the finding and filed charges of murder against the police officers
involved before the Sandiganbayan in Criminal Cases 23047 to 57, except that in the cases
of respondents Zubia, Acop, and Lacson, their liabilities were downgraded to mere
accessory. On arraignment, Lacson pleaded not guilty.
Upon respondents motion, the Sandiganbayan ordered the transfer of their cases to the
Regional Trial Court (RTC) of Quezon City on the ground that none of the principal
accused had the rank of Chief Superintendent or higher. Pending the resolution of the
Office of the Special Prosecutors motion for reconsideration of the transfer order, Congress
passed Republic Act (R.A.) 8249 that expanded the Sandiganbayans jurisdiction by
deleting the word "principal" from the phrase "principal accused" to apply to all pending
cases where trial had not begun. As a result of this new law, the Sandiganbayan opted to
retain and try the Kuratong Baleleng murder cases.
Respondent Lacson challenged the constitutionality of R.A. 8249 in G.R.
128096
4
rll but this Court upheld its validity. Nonetheless, the Court ordered the
transfer of the trial of the cases to the RTC of Quezon City since the amended informations
contained no allegations that respondents committed the offenses charged in relation to, or
in the discharge of, their official functions as required by R.A. 8249.
Before the RTC of Quezon City, Branch 81, then presided over by Judge Wenceslao Agnir,
Jr., could arraign respondents in the re-docketed Criminal Cases Q-99-81679 to 89,
however, SPO2 Delos Reyes and the other prosecution witnesses recanted their affidavits.
Some of the victims heirs also executed affidavits of desistance. These prompted the
respondents to file separate motions for the determination of probable cause before the
issuance of warrants of arrests.
On March 29, 1999 the RTC of Quezon City ordered the provisional dismissal of the cases
for lack of probable cause to hold the accused for trial following the recantation of the
principal prosecution witnesses and the desistance of the private complainants.
Two years later or on March 27, 2001 PNP Director Leandro R. Mendoza sought to revive
the cases against respondents by requesting the Department of Justice (DOJ) to conduct
another preliminary investigation in their cases on the strength of the affidavits of P/Insp.
Ysmael S. Yu and P/S Insp. Abelardo Ramos. In response, then DOJ Secretary Hernando
B. Perez constituted a panel of prosecutors to conduct the requested investigation.
Criminal Procedure - Rule 112| Page 44 of 80

Invoking their constitutional right against double jeopardy, Lacson and his co-accused filed
a petition for prohibition with application for temporary restraining order and writ of
preliminary injunction before the RTC of Manila in Civil Case 01-100933. In an Order
dated June 5, 2001, that court denied the plea for temporary restraining order. Thus, on
June 6, 2001 the panel of prosecutors found probable cause to hold Lacson and his co-
accused liable as principals for 11 counts of murder, resulting in the filing of separate
informations against them in Criminal Cases 01-101102 to 12 before the RTC of Quezon
City, Branch 81, now presided over by respondent Judge Ma. Theresa L. Yadao.
On the same day, respondent Lacson filed a petition for certiorari before the Court of
Appeals (CA), assailing the RTC of Manilas order which allowed the renewed preliminary
investigation of the murder charges against him and his co-accused. Lacson also filed with
the RTC of Quezon City a motion for judicial determination of probable cause. But on June
13, 2001 he sought the suspension of the proceedings in that court.
In the meantime, the CA issued a temporary restraining order enjoining the RTC of Quezon
City from issuing warrants of arrest or conducting any proceeding in Criminal Cases 01-
101102 to 12 before it. On August 24, 2001 the CA rendered a Decision, granting Lacsons
petition on the ground of double jeopardy since, although the dismissal of Criminal Cases
Q-99-81679 to 89 was provisional, such dismissal became permanent two years after when
they were not revived.
Upon the prosecutions appeal to this Court in G.R. 149453,
5
rll the Court ruled that,
based on the record, Lacson failed to prove compliance with the requirements of Section 8,
Rule 117 governing provisional dismissals. The records showed that the prosecution did
not file a motion for provisional dismissal and, for his part, respondent Lacson had merely
filed a motion for judicial determination of probable cause. Nowhere did he agree to some
proposal for a provisional dismissal of the cases. Furthermore, the heirs of the victims had
no notice of any motion for such provisional dismissal.
The Court thus set aside the CA Decision of August 24, 2001 and directed the RTC of
Quezon City to try the cases with dispatch. On motion for reconsideration by respondent
Lacson, the Court ordered the re-raffle of the criminal cases to a heinous crimes court.
Upon re-raffle, however, the cases still went to Branch 81, which as already stated was
now presided over by Judge Yadao.
On October 12, 2003 the parents of two of the victims submitted birth certificates showing
that they were minors. Apparently reacting to this, the prosecution amended the
informations to show such minority and asked respondent Executive Judge Ma. Natividad
M. Dizon to recall the assignment of the cases to Branch 81 and re-raffle them to a family
court. The request for recall was denied.
On October 20, 2003 the prosecution filed an omnibus motion before Branch 81, praying
for the re-raffle of Criminal Cases 01-101102 to12 to the family courts in view of the
changes in the two informations. On October 24, 2003 the prosecution also filed its
consolidated comment ex-abundanti cautela on the motions to determine probable cause.
On November 12, 2003
6
rll Judge Yadao issued an order, denying the prosecutions
motion for re-raffle to a family court on the ground that Section 5 of R.A. 8369 applied
only to living minors. She also granted the motions for determination of probable cause and
dismissed the cases against the respondents since the affidavits of the prosecution
witnesses were inconsistent with those they submitted in the preliminary investigations
before the Ombudsman for the crime of robbery.
On November 25, 2003 the prosecution filed a verified motion to recuse or disqualify
Judge Yadao and for reconsideration of her order. It also filed an administrative complaint
against her for dishonesty, conduct prejudicial to the best interests of the service, manifest
partiality, and knowingly rendering an unjust judgment.
7
rll On January 14, 2004, the
prosecution filed an urgent supplemental motion for compulsory disqualification with
motion for cancellation of the hearing on motion for reconsideration.
On January 21, 2004 Judge Yadao issued an order, denying the motion to recuse her,
prompting the prosecution to appeal from that order. Further, on January 22, 2004 Judge
Yadao issued another order, denying the prosecutions motion for reconsideration of the
Order dated November 12, 2003 that dismissed the action against the respondents. In
response, the prosecution filed a notice of appeal from the same. Finally, on January 26,
2004 Judge Yadao issued an order, denying the prosecutions motion for reconsideration of
its January 16, 2004 Order not only for lack of merit but also for having become moot and
academic.
On February 16, 2004 the prosecution withdrew ex-abundanti cautela the notices of appeal
that it filed in the cases. Subsequently, on March 3, 2004 it filed the present special civil
action of certiorari.
The Issues Presented
The prosecution presents the following issues:
1. Whether or not Executive Judge Dizon gravely abused her discretion in allowing
Criminal Cases 01-101102 to 12 to be re-raffled to other than among the RTC of Quezon
Citys family courts.
Criminal Procedure - Rule 112| Page 45 of 80

2. Whether or not Judge Yadao gravely abused her discretion when she took cognizance of
Criminal Cases 01-101102 to 12 contrary to the prosecutions view that such cases fell
under the jurisdiction of family courts.
3. Whether or not Judge Yadao gravely abused her discretion when she did not inhibit and
disqualify herself from taking cognizance of the cases.
4. Whether or not Judge Yadao gravely abused her discretion when she dismissed the
criminal actions on the ground of lack of probable cause and barred the presentation of
additional evidence in support of the prosecutions motion for reconsideration.
5. Whether or not Judge Yadao gravely abused her discretion when she adopted certain
policies concerning the conduct of hearings in her court.
The Courts Rulings
Before addressing the above issues, the Court notes respondents contention that the
prosecutions resort to special civil action of certiorari under Rule 65 is improper. Since the
trial court dismissed the criminal actions against respondents, the prosecutions remedy was
to appeal to the CA from that order of dismissal.
Ordinarily, the proper remedy from an order dismissing an action is an
appeal.
8
rll Here, the prosecution in fact filed a notice of appeal from such an order
issued in the subject cases. But it reconsidered its action and withdrew that notice,
believing that appeal was not an effective, speedy, and adequate remedy.
9
rll In other
words, the prosecutions move was not a case of forgotten remedy but a conscious resort to
another based on a belief that respondent Judge Yadao gravely abused her discretion in
issuing her various orders and that certiorari under Rule 65 was the proper and all-
encompassing remedy for the prosecution. The Court is not prepared to say that the remedy
is altogether implausible as to throw out the petition outright.
Still, the Court notes that the prosecution skipped the CA and filed its action directly with
this Court, ignoring the principle of judicial hierarchy of courts. Although the Supreme
Court, the CA, and the RTCs have concurrent jurisdiction to issue a writ of certiorari, such
concurrence does not give the People the unrestricted freedom of choice of
forum.
10
rll In any case, the immense public interest in these cases, the considerable
length of time that has passed since the crime took place, and the numerous times these
cases have come before this Court probably warrant a waiver of such procedural lapse.
1. Raffle of the Cases
The prosecution points out that the RTC of Quezon City Executive Judge gravely abused
her discretion when she placed Criminal Cases 01-101102 to 12 under a separate category
which did not restrict their raffle to the citys special criminal and family courts in
accordance with SC Administrative Order 36-96. Further, the prosecution points out that
she violated Administrative Order 19-98 when Branches 219 and 102 were left out of the
raffle. The presiding judges of these two branches, both heinous crimes courts eligible to
receive cases by raffle, had just been appointed to the CA.
The records of the cases show nothing irregular in the conduct of the raffle of the subject
cases. The raffle maintained a separate list for criminal and civil cases. Criminal cases
cognizable by special criminal courts were separately listed. Criminal Cases 01-101102 to
12 were given a separate heading, "Re-Raffle," but there was nothing irregular in this since
it merely indicated that the cases were not being raffled for the first time.
The Executive Judge did not err in leaving out Branches 219 and 102 from raffle since
these branches remained without regularly appointed judges. Although the pairing judges
of these branches had authority to act on incidental, interlocutory, and urgent matters, this
did not mean that such branches should already be included in the raffle of cases.
Parenthetically, the prosecution was represented during the raffle yet it did not then object
to the manner by which it was conducted. The prosecution raised the question only when it
filed this petition, a clear afterthought.
2. Jurisdiction of Family Courts
The prosecution points out that, although this Courts October 7, 2003 Resolution directed a
re-raffle of the cases to a heinous crimes court, the prosecution in the meantime amended
the informations to reflect the fact that two of the murder victims were minors. For this
reason, the Executive Judge should have raffled the cases to a family court pursuant to
Section 5 of R.A. 8369.
The Court is not impervious to the provisions of Section 5 of R.A. 8369, that vests in
family courts jurisdiction over violations of R.A. 7610, which in turn covers murder cases
where the victim is a minor. Thus:chanroblesvirtuallawlibrary
Sec. 5. Jurisdiction of Family Courts. The Family Courts shall have exclusive original
jurisdiction to hear and decide the following cases:chanroblesvirtuallawlibrary
a) Criminal cases where one or more of the accused is below eighteen (18) years of age but
not less than nine (9) years of age, or where one or more of the victims is a minor at the
time of the commission of the offense: Provided, That if the minor is found guilty, the
Criminal Procedure - Rule 112| Page 46 of 80

court shall promulgate sentence and ascertain any civil liability which the respondent may
have incurred. (Emphasis supplied)
Undoubtedly, in vesting in family courts exclusive original jurisdiction over criminal cases
involving minors, the law but seeks to protect their welfare and best interests. For this
reason, when the need for such protection is not compromised, the Court is able to relax the
rule. In several cases,
11
rll for instance, the Court has held that the CA enjoys
concurrent jurisdiction with the family courts in hearing petitions for habeas corpus
involving minors.
Here, the two minor victims, for whose interests the people wanted the murder cases
moved to a family court, are dead. As respondents aptly point out, there is no living minor
in the murder cases that require the special attention and protection of a family court. In
fact, no minor would appear as party in those cases during trial since the minor victims are
represented by their parents who had become the real private offended parties.
3. Inhibition of Judge Yadao
The prosecution claims that Judge Yadao committed grave abuse of discretion in failing to
inhibit herself from hearing the cases against the respondents.
The rules governing the disqualification of judges are found, first, in Section 1, Rule 137 of
the Rules of Court, which provides:chanroblesvirtuallawlibrary
Sec. 1. Disqualification of judges. No judge or judicial officer shall sit in any case in which
he, or his wife or child, is pecuniarily interested as heir, legatee, creditor or otherwise, or in
which he is related to either party within the sixth degree of consanguinity or affinity, or to
counsel within the fourth degree, computed according to the rules of the civil law, or in
which he has been executor, administrator, guardian, trustee or counsel, or in which he has
presided in any inferior court when his ruling or decision is the subject of review, without
the written consent of all parties in interest, signed by them and entered upon the record.
A judge may, in the exercise of his sound discretion, disqualify himself from sitting in a
case, for just or valid reasons other than those mentioned above.
and in Rule 3.12, Canon 3 of the Code of Judicial Conduct, which
states:chanroblesvirtuallawlibrary
Rule 3.12. A judge should take no part in a proceeding where the judges impartiality might
reasonably be questioned. These cases include among others, proceedings where:
(a) the judge has personal knowledge of disputed evidentiary facts concerning the
proceeding;
x x x
(e) the judge knows the judges spouse or child has a financial interest, as heir, legatee,
creditor, fiduciary, or otherwise, in the subject matter in controversy or in a party to the
proceeding, or any other interest that could be substantially affected by the outcome of the
proceeding. In every instance, the judge shall indicate the legal reason for inhibition.
The first paragraph of Section 1, Rule 137 and Rule 3.12, Canon 3 provide for the
compulsory disqualification of a judge while the second paragraph of Section 1, Rule 137
provides for his voluntary inhibition.
The matter of voluntary inhibition is primarily a matter of conscience and sound discretion
on the part of the judge since he is in a better position to determine whether a given
situation would unfairly affect his attitude towards the parties or their cases. The mere
imputation of bias, partiality, and prejudgment is not enough ground, absent clear and
convincing evidence that can overcome the presumption that the judge will perform his
duties according to law without fear or favor. The Court will not disqualify a judge based
on speculations and surmises or the adverse nature of the judges rulings towards those who
seek to inhibit him.
12
rll
Here, the prosecution contends that Judge Yadao should have inhibited herself for
improperly submitting to a public interview on the day following her dismissal of the
criminal cases against the respondents. But the Court finds nothing basically reprehensible
in such interview. Judge Yadaos dismissal of the multiple murder cases aroused natural
public interest and stirred the media into frenzy for correct information. Judge Yadao
simply accommodated, not sought, the requests for such an interview to clarify the basis of
her order. There is no allegation that she gave out false information. To be sure, the
prosecution never once accused her of making public disclosures regarding the merits of
those cases prior to her order dismissing such cases.
The prosecution also assails as constituting bias Judge Yadaos statement that a very close
relative stood to be promoted if she was to issue a warrant of arrest against the respondents.
But this statement merely shows that she cannot be dissuaded by some relative who is close
to her. How can this constitute bias? Besides, there is no evidence that the close relative
she referred to was her spouse or child which would be a mandatory ground for
disqualification.
Further, the prosecution claims that Judge Yadao prejudged its motion for reconsideration
when she said in her comment to the administrative complaint against her that such motion
Criminal Procedure - Rule 112| Page 47 of 80

was merely the prosecutions stubborn insistence on the existence of probable cause against
the respondents. The comment could of course not be regarded as a prejudgment of the
issue since she had precisely already issued an order holding that the complainants
evidence failed to establish probable cause against the respondents. And there is nothing
wrong about characterizing a motion for reconsideration as a "stubborn" position taken by
the party who filed it. Judge Yadao did not characterize the motion as wholly unjustified at
the time she filed her comment.
4. Dismissal of the Criminal Cases
The prosecution claims that Judge Yadao gravely abused her discretion when she set the
motions for determination of probable cause for hearing, deferred the issuance of warrants
of arrest, and allowed the defense to mark its evidence and argue its case. The prosecution
stresses that under Section 6, Rule 112 of the Rules of Court Judge Yadaos duty was to
determine probable cause for the purpose of issuing the arrest warrants solely on the basis
of the investigating prosecutors resolution as well as the informations and their supporting
documents. And, if she had some doubts as to the existence of probable cause, the rules
required her to order the investigating prosecutor to present additional evidence to support
the finding of probable cause within five days from notice.
Rather than take limited action, said the prosecution, Judge Yadao dug up and adopted the
Ombudsmans findings when the latter conducted its preliminary investigation of the crime
of robbery in 1996. Judge Yadao gave weight to the affidavits submitted in that earlier
preliminary investigation when such documents are proper for presentation during the trial
of the cases. The prosecution added that the affidavits of P/S Insp. Abelardo Ramos and
SPO1 Wilmor B. Medes reasonably explained the prior inconsistent affidavits they
submitted before the Ombudsman.
The general rule of course is that the judge is not required, when determining probable
cause for the issuance of warrants of arrests, to conduct a de novo hearing. The judge only
needs to personally review the initial determination of the prosecutor finding a probable
cause to see if it is supported by substantial evidence.
13
rll
But here, the prosecution conceded that their own witnesses tried to explain in their new
affidavits the inconsistent statements that they earlier submitted to the Office of the
Ombudsman. Consequently, it was not unreasonable for Judge Yadao, for the purpose of
determining probable cause based on those affidavits, to hold a hearing and examine the
inconsistent statements and related documents that the witnesses themselves brought up
and were part of the records. Besides, she received no new evidence from the
respondents.
14
rll
The public prosecutor submitted the following affidavits and documents along with the
criminal informations to enable Judge Yadao to determine the presence of probable cause
against the respondents:
1. P/Insp. Ysmael S. Yus affidavit of March 24, 2001
15
rll in which he said that on May
17, 1995 respondent Canson, NCR Command Head, ordered him to form two teams that
would go after suspected Kuratong Baleleng Gang members who were seen at the
Superville Subdivision in Paraque City. Yu headed the assault team while Marlon Sapla
headed the perimeter defense. After the police team apprehended eight men inside the safe
house, it turned them over to their investigating unit. The following day, Yu just learned
that the men and three others were killed in a shoot-out with the police in Commonwealth
Avenue in Quezon City.
2. P/S Insp. Abelardo Ramos affidavit of March 24, 2001
16
rll in which he said that he
was part of the perimeter defense during the Superville operation. After the assault team
apprehended eight male suspects, it brought them to Camp Crame in two vans. Ramos then
went to the office of respondent Zubia, TMC Head, where he saw respondents Lacson,
Acop, Laureles, Villacorte and other police officers.
According to Ramos, Zubia said that the eight suspects were to be brought to
Commonwealth Avenue and killed in a supposed shoot-out and that this action had been
cleared with higher authorities, to which remark Lacson nodded as a sign of approval.
Before Ramos left the meeting, Lacson supposedly told him, "baka may mabuhay pa
diyan." Ramos then boarded an L-300 van with his men and four male suspects. In the
early morning of May 18, 1995, they executed the plan and gunned down the suspects. A
few minutes later, P/S Insp. Glenn G. Dumlao and his men arrived and claimed
responsibility for the incident.
3. SPO1 Wilmor B. Medes affidavit of April 24, 2001
17
rll in which he corroborated
Ramos statements. Medes said that he belonged to the same team that arrested the eight
male suspects. He drove the L-300 van in going to Commonwealth Avenue where the
suspects were killed.
4. Mario C. Enads affidavit of August 8, 1995
18
rll in which he claimed having served
as TMC civilian agent. At around noon of May 17, 1995, he went to Superville Subdivision
together with respondents Dumlao, Tannagan, and Nuas. Dumlao told Enad to stay in the
car and observe what went on in the house under surveillance. Later that night, other police
officers arrived and apprehended the men in the house. Enad went in and saw six men lying
on the floor while the others were handcuffed. Enad and his companions left Sucat in the
early morning of May 18, 1995. He fell asleep along the way but was awaken by gunshots.
He saw Dumlao and other police officers fire their guns at the L-300 van containing the
apprehended suspects.
Criminal Procedure - Rule 112| Page 48 of 80

5. SPO2 Noel P. Senos affidavit of May 31, 2001
19
rll in which he corroborated what
Ramos said. Seno claimed that he was part of the advance party in Superville Subdivision
and was also in Commonwealth Avenue when the suspected members of the Kuratong
Baleleng Gang were killed.
6. The PNP ABRITG After Operations Report of May 31, 1995
20
rll which narrated the
events that took place on May 17 and 18, 1995. This report was submitted by Lacson,
Zubia, Acop and Canson.
7. The PNP Medico-Legal Reports
21
rll which stated that the suspected members of the
Kuratong Baleleng Gang tested negative for gunpowder nitrates.
The Court agrees with Judge Yadao that the above affidavits and reports, taken together
with the other documents of record, fail to establish probable cause against the respondents.
First. Evidently, the case against respondents rests on the testimony of Ramos,
corroborated by those of Medes, Enad, and Seno, who supposedly heard the commanders
of the various units plan the killing of the Kuratong Baleleng Gang members somewhere in
Commonwealth Avenue in Quezon City and actually execute such plan. Yus testimony is
limited to the capture of the gang members and goes no further. He did not see them killed.
Second. Respecting the testimonies of Ramos, Medes, Enad, and Seno, the prosecutions
own evidencethe PNP ABRITGs After Operations Report of May 31, 1995shows that these
men took no part in the operations against the Kuratong Baleleng Gang members. The
report included a comprehensive list of police personnel from Task Force Habagat
(Lacson), Traffic Management Command (Zubia), Criminal Investigation Command
(Acop), and National Capital Region Command (Canson) who were involved. The names
of Ramos, Medes, Enad, and Seno were not on that list. Notably, only Yus name, among
the new set of witnesses, was on that list. Since an after-battle report usually serves as basis
for commendations and promotions, any omitted name would hardly have gone
unchallenged.
Third. Ramos, whose story appeared to be the most significant evidence against the
respondents, submitted in the course of the preliminary investigation that the Office of the
Ombudsman conducted in a related robbery charge against the police officers involved a
counter-affidavit. He claimed in that counter-affidavit that he was neither in Superville
Subdivision nor Commonwealth Avenue during the Kuratong Baleleng operations since he
was in Bulacan on May 17, 1995 and at his home on May 18.
22
rllNotably, Medes
claimed in a joint counter-affidavit that he was on duty at the TMC headquarters at Camp
Crame on May 17 and 18.
23
rll
Fourth. The Office of the Ombudsman, looking at the whole picture and giving credence to
Ramos and Medes statements, dismissed the robbery case. More, it excluded Ramos from
the group of officers that it charged with the murder of the suspected members of the
Kuratong Baleleng Gang. Under the circumstances, the Court cannot be less skeptical than
Judge Yadao was in doubting the sudden reversal after six years of testimony of these
witnesses.
Of course, Yu may have taken part in the subject operation but, as he narrated, his role was
limited to cornering and arresting the suspected Kuratong Baleleng Gang members at their
safe house in Superville Subdivision. After his team turned the suspects over to an
investigating unit, he no longer knew what happened to them.
Fifth. True, the PNP Medico-Legal Reports showed that the Kuratong Baleleng Gang
members tested negative for gunpowder nitrates. But this finding cannot have any legal
significance for the purpose of the preliminary investigation of the murder cases against the
respondents absent sufficient proof that they probably took part in gunning those gang
members down.
The prosecution points out that, rather than dismiss the criminal action outright, Judge
Yadao should have ordered the panel of prosecutors to present additional evidence
pursuant to Section 6, Rule 112 of the Rules of Court which
provides:chanroblesvirtuallawlibrary
Sec. 6. When warrant of arrest may issue. (a) By the Regional Trial Court. Within ten (10)
days from the filing of the complaint or information, the judge shall personally evaluate the
resolution of the prosecutor and its supporting evidence. He may immediately dismiss the
case if the evidence on record clearly fails to establish probable cause. If he finds probable
cause, he shall issue a warrant of arrest, or a commitment order if the accused has already
been arrested pursuant to a warrant issued by the judge who conducted the preliminary
investigation or when the complaint or information was filed pursuant to section 7 of this
Rule. In case of doubt on the existence of probable cause, the judge may order the
prosecutor to present additional evidence within five (5) days from notice and the issue
must be resolved by the court within thirty (30) days from the filing of the complaint of
information.
Section 6, Rule 112 of the Rules of Court gives the trial court three options upon the filing
of the criminal information: (1) dismiss the case if the evidence on record clearly failed to
establish probable cause; (2) issue a warrant of arrest if it finds probable cause; and (3)
order the prosecutor to present additional evidence within five days from notice in case of
doubt as to the existence of probable cause.
24
rll
Criminal Procedure - Rule 112| Page 49 of 80

But the option to order the prosecutor to present additional evidence is not mandatory. The
courts first option under the above is for it to "immediately dismiss the case if the evidence
on record clearly fails to establish probable cause." That is the situation here: the evidence
on record clearly fails to establish probable cause against the respondents.
It is only "in case of doubt on the existence of probable cause" that the judge may order the
prosecutor to present additional evidence within five days from notice. But that is not the
case here. Discounting the affidavits of Ramos, Medes, Enad, and Seno, nothing is left in
the record that presents some doubtful probability that respondents committed the crime
charged. PNP Director Leandro Mendoza sought the revival of the cases in 2001, six years
after it happened. It would have been ridiculous to entertain the belief that the police could
produce new witnesses in the five days required of the prosecution by the rules.
In the absence of probable cause to indict respondents for the crime of multiple murder,
they should be insulated from the tribulations, expenses and anxiety of a public
trial.
25
rll
5. Policies Adopted for Conduct of Court Hearing
The prosecution claims that Judge Yadao arbitrarily recognized only one public prosecutor
and one private prosecutor for all the offended parties but allowed each of the counsels
representing the individual respondents to be heard during the proceedings before it. She
also unjustifiably prohibited the prosecutions use of tape recorders.
But Section 5, Rule 135 of the Rules of Court gives the trial court ample inherent and
administrative powers to effectively control the conduct of its proceedings.
Thus:chanroblesvirtuallawlibrary
Sec. 5. Inherent powers of court. Every court shall have power:
x x x
(b) To enforce order in proceedings before it, or before a person or persons empowered to
conduct a judicial investigation under its authority;
x x x
(d) To control, in furtherance of justice, the conduct of its ministerial officers, and of all
other persons in any manner connected with a case before it, in every manner appertaining
thereto;
x x x
(g) To amend and control its process and orders so as to make them conformable to law
and justice;
x x x
There is nothing arbitrary about Judge Yadaos policy of allowing only one public
prosecutor and one private prosecutor to address the court during the hearing for
determination of probable cause but permitting counsels representing the individual
accused to do so. A criminal action is prosecuted under the direction and control of the
public prosecutor.
26
rll The burden of establishing probable cause against all the
accused is upon him, not upon the private prosecutors whose interests lie solely in their
clients damages claim. Besides, the public and the private prosecutors take a common
position on the issue of probable cause. On the other hand, each of the accused is entitled to
adopt defenses that are personal to him.
As for the prohibition against the prosecutions private recording of the proceedings, courts
usually disallows such recordings because they create an unnecessary distraction and if
allowed, could prompt every lawyer, party, witness, or reporter having some interest in the
proceeding to insist on being given the same privilege. Since the prosecution makes no
claim that the official recording of the proceedings by the courts stenographer has been
insufficient, the Court finds no grave abuse of discretion in Judge Yadaos policy against
such extraneous recordings.blrlllbrr
WHEREFORE, the Court DISMISSES this petition and AFFIRMS the following assailed
Orders of the Regional Trial Court of Quezon City, Branch 81 in Criminal Cases 01-
101102 to 12:
1. the Order dated November 12, 2003 which denied the prayer for re-raffle, granted the
motions for determination of probable cause, and dismissed the criminal cases;
2. the Order dated January 16, 2004 which granted the motion of the respondents for the
immediate resolution of the three pending incidents before the court;
3. the Order dated January 21, 2004 which denied the motion to recuse and the urgent
supplemental motion for compulsory disqualification;
4. the Order dated January 22, 2004 which denied the motion for reconsideration of the
Order dated November 12, 2003; and
Criminal Procedure - Rule 112| Page 50 of 80

5. the Order dated January 26, 2004 which denied the motion for reconsideration of the
January 16, 2004 Order.
SO ORDERED.

Criminal Procedure - Rule 112| Page 51 of 80

EN BANC

[G.R. Nos. L-72335-39. March 21, 1988.]

FRANCISCO S. TATAD, Petitioner, v. THE SANDIGANBAYAN, and THE
TANODBAYAN,Respondents.


SYLLABUS


1. CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE PROCESS; DELAY OF THREE
YEARS IN THE TERMINATION OF PRELIMINARY INVESTIGATION, A
VIOLATION THEREOF. We find the long delay in the termination of the preliminary
investigation by the Tanodbayan in the instant case to be violative of the constitutional
right of the accused to due process. Substantial adherence to the requirements of the law
governing the conduct of preliminary investigation, including substantial compliance with
the time limitation prescribed by the law for the resolution of the case by the prosecutor, is
part of the procedural due process constitutionally guaranteed by the fundamental law. Not
only under the broad umbrella of the due process clause, but under the constitutionally
guarantee of "speedy disposition" of cases as embodied in Section 16 of the Bill of Rights
(both in the 1973 and the 1987 Constitutions), the inordinate delay is violative of the
petitioners constitutional rights.

2. REMEDIAL LAW; CRIMINAL PROCEDURE; LONG DELAY IN FILING OF
INFORMATIONS AGAINST ACCUSED WARRANTS DISMISSAL OF CASES. We
are constrained to hold that the inordinate delay in terminating the preliminary
investigation and filing the information in the instant case is violative of the
constitutionally guaranteed right of the petitioner to due process and to a speedy disposition
of the cases against him. Accordingly, the informations in Criminal Cases Nos. 10499,
10500, 10501, 10502 and 10503 should be dismissed.


D E C I S I O N


YAP, J .:


In this petition for certiorari and prohibition, with preliminary injunction, dated October
16, 1985, petitioner seeks to annul and set aside the resolution of he Tanodbayan of April
7, 1985, and the resolutions of the Sandiganbayan, dated August 9, 1985, August 12, 1985
and September 17, 1985, and to enjoin the Tanodbayan and the Sandiganbayan from
continuing with trial or any other proceedings in Criminal Cases Nos. 10499, 10500,
10501, 10502 and 10503, all entitled "People of the Philippines versus Francisco S. Tatad."

The petition alleges, among other things, that sometime in October 1974, Antonio de los
Reyes, former Head Executive Assistant of the then Department of Public Information
(DPI) and Assistant Officer-in-Charge of the Bureau of Broadcasts, filed a formal report
with the Legal Panel, Presidential Security Command (PSC), charging petitioner, who was
then Secretary and Head of the Department of Public Information, with alleged violations
of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act.
Apparently, no action was taken on said report.

Then, in October 1979, or five years later, it became publicly known that petitioner had
submitted his resignation as Minister of Public Information, and two months after, or on
December 12, 1979, Antonio de los Reyes filed a complaint with the Tanodbayan (TBP
Case No. 8005-16-07) against the petitioner, accusing him of graft and corrupt practices in
the conduct of his office as then Secretary of Public Information. The complaint repeated
the charges embodied in the previous report filed by complaint before the Legal Panel,
Presidential Security Command (PSC).

On January 26, 1980, the resignation of petitioner was accepted by President Ferdinand E.
Marcos. On April 1, 1980, the Tanodbayan referred the complaint of Antonio de los Reyes
to the Criminal Investigation Service (CIS) for fact-finding investigation. On June 16,
1980, Roberto P. Dizon, CIS Investigator of the Investigation and Legal Panel, PSC,
submitted his Investigation Report, with the following conclusion,." . . evidence gathered
indicates that former Min. TATAD had violated Sec. 3 (e) and Sec. 7 of RA 3019,
respectively. On the other hand, Mr. ANTONIO L. CANTERO is also liable under Sec. 5
of RA 3019," and recommended appropriate legal action on the matter.

Petitioner moved to dismiss the complaint against him, claiming immunity from
prosecution by virtue of PD 1791, but the motion was denied on July 26, 1982 and his
motion for reconsideration was also denied on October 5, 1982. On October 25, 1982, all
affidavits and counter-affidavits were with the Tanodbayan for final disposition. On July 5,
1985, the Tanodbayan approved a resolution, dated April 1, 1985, prepared by Special
Prosecutor Marina Buzon, recommending that the following informations be filed against
petitioner before the Sandiganbayan, to wit:chanrobles law library

"1. Violation of Section 3, paragraph (e) of R.A. 3019 for giving DGroup, a private
corporation controlled by his brother-in-law, unwarranted benefits, advantage or preference
in the discharge of his official functions through manifest partiality and evident bad faith;

"2. Violation of Section 3, paragraph (b) of R.A. 3019 for receiving a check of
P125,000.00 from Roberto Vallar, President/General Manager of Amity Trading
Corporation as consideration for the release of a check of P588,000.00 to said corporation
for printing services rendered for the Constitutional Convention Referendum in 1973;

Criminal Procedure - Rule 112| Page 52 of 80

"3. Violation of Section 7 of R.A. 3019 on three (3) counts for his failure to file his
Statement of Assets and Liabilities for the calendar years 1973, 1976 and 1978."

Accordingly, on June 12, 1985, the following informations were filed with the
Sandiganbayan against the petitioner:

Re: Criminal Case No. 10499

"The undersigned Tanodbayan Special Prosecutor accuses Francisco S. Tatad with
Violation of Section 3, paragraph (b) of Republic Act No. 3019, otherwise known as the
Anti-Graft and Corrupt Practices Act, committed as follows:

That on or about the 16th day of July, 1973 in the City of Manila, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, being then the
Secretary of the Department (now Ministry) of Public Information, did then and there,
wilfully and unlawfully demand and receive a check for P125,000.00 from Roberto Vallar,
President/General Manager of Amity Trading Corporation as consideration for the payment
to said Corporation of the sum of P588,000.00, for printing services rendered for the
Constitutional Convention Referendum of January, 1973, wherein the accused in his
official capacity had to intervene under the law in the release of the funds for said project.

That the complaint against the above-named accused was filed with the Office of the
Tanodbayan on May 16, 1980.

CONTRARY TO LAW."

Re: Criminal Case No. 10500

"The undersigned Tanodbayan Special Prosecutor accused FRANCISCO S. TATAD with
Violation of Section 7 of Republic Act No. 3019, otherwise known as the Anti-Graft and
Corrupt Practices Act, committed as follows:

That on or about the 31st day of January, 1974 in the City of Manila, Philippines, and
within the jurisdiction of this Honorabe Court, the above-named accused, a public officer
being then the Secretary of the Department (now Ministry) of Public Information, did then
and there wilfully and unlawfully fail to prepare and file with the Office of the President, a
true detailed and sworn statement of his assets and liabilities, as of December 31, 1973,
including a statement of the amounts and sources of his income, the amounts of his
personal and family expenses and the amount of income taxes paid for the next preceding
calendar year (1973), as required of every public officer.

That the complaint against the above-named accused was filed with the Office of the
Tanodbayan on June 20, 1980.

CONTRARY OF LAW."

Re: Criminal Case No. 10501

"The undersigned Tanodbayan Special Prosecutor accuses FRANCISCO S. TATAD with
Violation of Section 3, paragraph (e) of Republic Act No. 3019, otherwise known as the
Anti-Graft and Corrupt Practices Act, committed as follows:

That on the about the month of May, 1975 and for sometime prior thereto, in the City of
Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, a public officer being then the Secretary of the Department (now Ministry) of
Public Information, did then and there, wilfully and unlawfully give Marketing
Communication Group, Inc. (DGroup), a private corporation of which his brother-in-law,
Antonio L. Cantero, is the President, unwarranted benefits, advantage or preference in the
discharge of his official functions, through manifest partiality and evident bad faith, by
allowing the transfer of D GROUP of the funds, assets and ownership of South East Asia
Research Corporation (SEARCH), allegedly a private corporation registered with the
Securities and Exchange Corporation on June 4, 1973, but whose organization and
operating expenses came from the confidential funds of the Department of Public
Information as it was organized to undertake research, projects for the government, without
requiring an accounting of the funds advanced by the Department of Public Information
and reimbursement thereof by D GROUP, to the damage and prejudice of the government.

That the complaint against the above-named accused was filed with the office of the
Tanodbayan on May 16, 1980.

CONTRARY TO LAW."

Re: Criminal Case No. 10502

"The undersigned Tanodbayan Special Prosecutor accuses FRANCISCO S. TATAD with
Violation of Section 7 of Republic Act No. 3019, otherwise known as the Anti-Graft and
Corrupt Practices Act, committed as follows:

That on or about the 31st day of January, 1977 in the City of Manila, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, a public officer
being then the Secretary of the Department (now Ministry) of Public Information, did then
and there wilfully and unlawfully fail to prepare and file with the Office of the President, a
true and sworn statement of his assets and liabilities, as of December 31, 1976, including a
statement of the amounts of his personal and family expenses and the amount of income
taxes paid for the next preceding calendar year (1976), as required of every public officer.

That the complaint against the above-named accused was filed with the Office of the
Tanodbayan on June 20, 1988.
Criminal Procedure - Rule 112| Page 53 of 80


CONTRARY TO LAW."

Re: Criminal Case No. 10503

"The undersigned Tanodbayan Special Prosecutor accuses FRANCISCO S. TATAD with
Violation of Section 7 of Republic Act No. 3019, otherwise known as the Anti-Graft and
Corrupt Practices Act, committed as follows:

That on or about the 15th day of April, 1979, in the City of Manila, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, a public officer being
then the Secretary of the Department (now Ministry) of Public Information, did then and
there wilfully and unlawfully fail to prepare and file with the Office of the President, a true,
detailed and sworn statement of his assets and liabilities, as a December 31, 1978,
including a statement of the amounts and sources of his income, the amounts of his
personal and family expenses and the amount of income taxes paid for the next preceding
calendar year (1978), as required of every public officer.

That the complaint against the above-named accused was filed with the office of the
Tanodbayan on June 20, 1980.

CONTRARY TO LAW."

On July 22, 1985, petitioner filed with the Sandiganbayan a consolidated motion to quash
the information on the following grounds:

"1. The prosecution deprived accused-movant of due process of law and of the right to a
speedy disposition of the cases filed against him, amounting to loss of jurisdiction of file
the informations;

2. Prescription of the offenses charged in Crim. Case Nos. 10499, 10500 and 10501;

3. The facts charged in Criminal Case No. 10500 (for failure to file Statement of Assets
and Liabilities for the year 1973) for not constitute an offense;

4. No prima facie case against the accused-movant exists in Criminal Cases Nos. 10500,
10502 and 10503;

5. No prima facie case against the accused-movan exists in Criminal Case No. 10199 for
Violation of Sec. 3, par. (b) of R.A. 3019, as amended;

6. No prima facie case against the accused-movant exists in Criminal Case No. 10501 (for
Violation of Sec. 3 (e) of R.A. 3019, as amended."

On July 26, 1985, the Tanodbayan filed it s opposition to petitioners consolidated motion
to quash, stating therein in particular that there were only two grounds in said motion that
needed refutation, namely:

1. The offense charged in Criminal Cases Nos. 10499, 10500 and 10501, have already
prescribed and criminal liability is extinguished; and

2. The facts charged in the information (Criminal Case No. 10500 For failure to file
Statement of Assets and Liabilities for the year 1973) do not constitute an offense.

On the issue of prescription, Tanodbayan citing the case of Francisco v. Court of Appeals,
122 SCRA 538, contended that the filing of the complaint or denuncia in the fiscals office
interrupts the period of prescription. Since the above-numbered cases were filed with the
Office of the Tanodbayan in 1980 and the alleged offenses were committed on July 16,
1973, January 31, 1974 and in May 1975, respectively, although the charges were actually
filed in Court only on July 9, 1985, the Tanodbayan has still the right to prosecute the
same, it appearing that the ten (10) year prescriptive period has not yet lapsed. Moreover,
Tanodbayan pointed out that a law such as Batas Pambansa Blg. 195, extending the period
of limitation with respect to criminal prosecution, unless the right to acquittal has been
acquired, is constitutional.

Tanodbayan likewise said that the requirement for the filing of the Statement of Assets and
Liabilities in P.D. 379 is separate and distinct from that required pursuant to the provisions
of the Anti-Graft Law, as amended. For While the former requires "any natural or juridical
person having gross assets of P50,000.00 or more . . ." to submit a statement of assets and
liabilities." . . regardless of the networth," the mandate in the latter law is for ALL
government employees and officials to submit a statement of assets and liabilities. Hence,
the prosecution under these two laws are separate and distinct from each other.
Tanodbayan also explained that delay in the conduct of preliminary investigation does not
impair the validity of the informations filed and that neither will it render said informations
defective. Finally, Tanodbayan added that P.D. 911, the law which governs preliminary
investigations is merely directory insofar as it fixes a period of ten (10) days from its
termination to resolve the preliminary investigation.

On August 9, 1985, the Sandiganbayan rendered its challenged resolution denying
petitioners motion to quash, the dispositive portion of which reads:

"WHEREFORE, prescinding therefrom, We find, and so hold, that the accuseds
"Consolidated Motion to Quash" should be as it is hereby, denied for lack of merit.
Comformably to Rule 117, Section 4 of the 1985 Rules on Criminal Procedure, the defect
in the information in Criminal Case No. 10500 being one which could be cured by
amendment, the Tanodbayan is hereby directed to amend said information to charged from
January 31, 1974 to September 30, 1974 within five (5) days from receipt hereof.

Criminal Procedure - Rule 112| Page 54 of 80

SO ORDERED."

On August 10, 1985, in compliance with the Sandiganbayans resolution of August 8,
1985, the Tanodbayan filed an amended information in Criminal Case No. 10500, changing
the date of the commission of the offense to September 30, 1974.

On August 30, 1985, petitioners filed a consolidated motion for reconsideration which was
denied by the Sandiganbayan on September 17, 1985. Hence, petitioner filed this petition
on October 16, 1985 assailing the denial of his motion to quash. On October 22, 1985, the
Court, without giving due course to the petition, resolved to require the respondents to
comment thereon and issued a temporary restraining order effective immediately and
continuing until further orders of the Court, enjoining the respondents Sandiganbayan and
Tanodbayan from continuing with the trial and other proceedings in Criminal Cases Nos.
10499, 10500, 10501, 10502 and 10503. In compliance with said resolution, the
respondents, through Solicitor General Estelito P. Mendoza, filed their comment on
January 6, 1986.

On April 10, 1986, The Court required the parties to move in the premises considering the
supervening events, including the change of administration that had transpired, and the
provisions for Sec. 18, Rule 3 of the Rule of Court insofar as the public respondents were
concerned, which required the successor official to state whether or not he maintains the
action or position taken by his predecessor in office. On June 20, 1986, the new
Tanodbayan manifested that since "the charges are not political offenses and they have no
political bearing whatsoever," he had no alternative but to pursue the cases against the
petitioner, should not Court resolve to deny the position; that in any event, petitioner is not
precluded from pursuing any other legal remedies under the law, such as the filing of a
motion for re-evaluation of his cases with the Tanodbayan. The new Solicitor General filed
a manifestation dated June 27, 1986 in which he concurred with the position taken by the
new Tanodbayan.

Pursuant to the above manifestation of the new Tanodbayan, the petitioner filed a motion
for re-evaluation with the Office of the Tanodbayan, dated July 21, 1986, praying that the
cases in question be re-evaluated and the informations be quashed. The Court is not aware
of what action, if any, has been taken thereon by the Tanodbayan. However, be that as it
may, the filing of the aforesaid motion for re-evaluation with the Tanodbayan has no
material bearing insofar as the duty of this Court to resolve the issues raised in the instant
petition is concerned.

Petitioner has raised the following issues in his petition:

1. Whether the prosecutions long delay in the filing of these cases with the Sandiganbayan
had deprived petitioner of his constitutional right to due process and the right to a speedy
disposition of the cases against him.

2. Whether the crimes charged has already prescribed.

3. Whether there is a discriminatory prosecution of the petitioner by the Tanodbayan.

4. Whether Sandiganbayan should have ruled on the question of amnesty raised by the
petitioner.

5. Whether petitioners contention of the supposed lack or non-existence of prima facie
evidence to sustain the filing of the cases at bar justifies the quashal of the questioned
informations.

Petitioner claims that the Tanodbayan culpably violated the constitutional mandate of "due
process" and "speedy disposition of cases" in unduly prolonging the termination of the
preliminary investigation and in filing the corresponding informations only after more than
a decade from the alleged commission of the purported offenses, which amounted to loss of
jurisdiction and authority to file the informations. The respondent Sandiganbayan
dismissed petitioners contention, saying that the applicability of the authorities cited by
him to the case at bar was "nebulous;" that it would be premature for the court to grant the
"radical relief" prayed for by petitioner at this stage of the proceeding; that the mere
allegations of "undue delay" do not suffice to justify acceptance thereof without any
showing "as to the supposed lack or omission of any alleged procedural right granted or
allowed to the respondent accused by law or administrative fiat" or in the absence of
"indubitable proof of any irregularity or abuse" committed by the Tanodbayan in the
conduct of the preliminary investigation; that such facts and circumstances as would
establish petitioners claim of denial of due process and other constitutionally guaranteed
rights could be presented and more fully threshed out at the trial. Said the Sandiganbayan:

"That there was a hiatus in the proceedings between the alleged termination of the
proceedings before the investigating fiscal on October 25, 1982 and its resolution on April
17, 1985 could have been due to certain factors which do not appear on record and which
both parties did not bother to explain or elaborate upon in detail. It could even be logically
inferred that the delay may be due to painstaking and grueling scrutiny by the Tanodbayan
as to whether the evidence presented during the preliminary investigation merited
prosecution of a former high-ranking government official. In this respect, We are of the
considered opinion that the provision of Pres. Decree No. 911, as amended, regarding the
resolution of a complaint by the Tanodbayan within ten (10) days from termination of the
preliminary investigation is merely "directory" in nature, in view of the nature and extent
of the proceedings in said office.

The statutory grounds for the quashal of an information are clearly set forth in concise
language in Rule 117, Section 2, of the 1985 Rules on Criminal Procedure and no other
grounds for quashal may be entertained by the Court prior to arraignment inasmuch as it
would be itself remiss in the performance of its official functions and subject to the charge
that it has gravely abused its discretion. Such facts and circumstances which could
Criminal Procedure - Rule 112| Page 55 of 80

otherwise justify the dismissal of the case, such as failure on the part of the prosecution to
comply sit due process or any other constitutionally-guaranteed rights may be presented
during the trial wherein evidence for and against the issue involved may be fully threshed
out and considered. Regrettably, the accused herein attempts to have the Court grant such
as radical relief during this stage of the proceedings which precludes a precocious or
summary evaluation of insufficient evidence in support thereof."

This bring us to the crux of the issue at hand. Was petitioner deprived of his constitutional
right to due process and the right to "speedy disposition" of the cases against him as
guaranteed by the Constitution? May the court, ostrich-like, bury its head in the sand, as it
were, at the initial stage of the proceedings and wait to resolve the issue only after the trial?

In a number of cases, 1 this Court has not hesitated to grant the so-called "radical relief"
and to spare the accused from undergoing the rigors and expense of a full-blown trial
where it is clear that the has been deprived of due process of law or other constitutionally
guaranteed rights. Of course, it goes without saying that in the application of the doctrine
enunciated in those cases, particular regard must be taken of the facts and circumstances
peculiar to each case.

Coming to the case at bar, the following relevant facts appear on record and are largely
undisputed. The complainant, Antonio de los Reyes, originally filed what he termed "a
report" with the Legal Panel of the Presidential Security Command (PSC) on October
1974, containing charges of alleged violations of Rep. Act No. 3019 against then Secretary
of Public Information Francisco S. Tatad. The "report" was made to "sleep" in the office of
the PSC until the end of 1979 when it became widely known that Secretary (then Minister)
Tatad had a falling out with President Marcos and had resigned from the Cabinet. On
December 12, 1979, the 1974 complaint was resurrected in the form of a formal complaint
filed with the Tanodbayan and docketed as TBP Case No. 8005-16-07. The Tanodbayan
acted on the complaint on April 1, 1980 which was around two months after petitioner
Tatads resignation was accepted by Pres. Marcos by referring the complaint to the CIS,
Presidential Security Command, for investigation and report. On June 16, 1980, the CIS
report was submitted to the Tanodbayan, recommending the filing of charges for graft and
corrupt practices against former Minister Tatad and Antonio L. Cantero. By October 25,
1982, all affidavit and counter-affidavits were in and the case was ready for disposition by
the Tanodbayan. However, it was only on July 5, 1985 that a resolution was approved by
the Tanodbayan, recommending the filing of the corresponding criminal informations
against the accused Francisco Tatad. Five (5) criminal informations were filed with the
Sandiganbayan on June 12, 1985, all against petitioner Tatad alone.

A painstaking review of the facts can not but leave the impression that political motivations
played a vital role in activating and propelling the prosecutorial process in this case.
Firstly, the complaint came to life, as it were, only after petitioner Tatad had a falling out
with President Marcos. Secondly, departing from established procedures prescribed by law
for preliminary investigation, which require the submission of affidavits and counter-
affidavits by the Tanodbayan referred the complaint to the Presidential Security Command
for fact-finding investigation and report.

We find such blatant departure from the established procedure as a dubious, but revealing
attempt to involve an office directly under the President in the prosecution was politically
motivated. We cannot emphasize too strongly that prosecutors should not allow, and
should avoid, giving the impression that their noble office is being used or prostituted,
wittingly or unwittingly, for political ends or other purposes alien to, or subversive of, the
basic and fundamental objective of serving the interest of justice evenhandedly, without
fear or favor to any and all litigants alike, whether rich or poor, weak or strong, powerless
or mighty. Only by strict adherence to the established procedure may the publics
perception of the impartiality of the prosecutor be enhanced.

Moreover, the long delay in resolving the case under preliminary investigation can not be
justified on the basis of the facts on record. The law (P.D. No. 911) prescribes a ten-day
period for the prosecutor to resolve a case under preliminary investigation by him from its
termination. While we agree with the respondent court that this period fixed by law is
merely "directory," yet, on the other hand, it can not be disregarded or ignored completely,
with absolute impunity. It certainly can not be assumed that the law has included a
provision that is deliberately intended to become meaningless and to be treated as a dead
letter.

We find the long delay in the termination of the preliminary investigation by the
Tanodbayan in the instant case to be violative of the constitutional right of the accused to
due process. Substantial adherence to the requirements of the law governing the conduct of
preliminary investigation, including substantial compliance with the time limitation
prescribed by the law for the resolution of the case by the prosecutor, is part of the
procedural due process constitutionally guaranteed by the fundamental law. Not only under
the broad umbrella of the due process clause, but under the constitutionally guarantee of
"speedy disposition" of cases as embodied in Section 16 of the Bill of Rights (both in the
1973 and the 1987 Constitutions), the inordinate delay is violative of the petitioners
constitutional rights. A delay of close to three (3) years can not be deemed reasonable or
justifiable in the light of the circumstance obtaining in the case at bar. We are not
impressed by the attempt of the Sandiganbayan to sanitize the long delay by indulging in
the speculative assumption that "the delay may be due to a painstaking and grueling
scrutiny by the Tanodbayan as to whether the evidence presented during the preliminary
investigation merited prosecution of a former high-ranking government official." In the
first place, such a statement suggests a double standard of treatment, which must be
emphatically rejected. Secondly, three out of the five charges against the petitioner were
for his alleged failure to file his sworn statement of assets and liabilities required by
Republic Act No. 3019, which certainly did not involve complicated legal and factual
issues necessitating such "painstaking and grueling scrutiny" as would justify a delay of
almost three years in terminating the preliminary investigation. The other two charges
relating to alleged bribery and alleged giving of unwarranted benefits to a relative, while
Criminal Procedure - Rule 112| Page 56 of 80

presenting more substantial legal and factual issues, certainly do not warrant or justify the
period of three years, which it took the Tanodbayan to resolve the case.

It has been suggested that the long delay in terminating the preliminary investigation
should not be deemed fatal, for even the complete absence of a preliminary investigation
does not warrant dismissal of the information. True but the absence of a a preliminary
investigation can be corrected by giving the accused such investigation. But an undue delay
in the conduct of a preliminary investigation can not be corrected, for until now, man has
not yet invented a device for setting back time.

After a careful review of the facts and circumstances of this case, we are constrained to
hold that the inordinate delay in terminating the preliminary investigation and filing the
information in the instant case is violative of the constitutionally guaranteed right of the
petitioner to due process and to a speedy disposition of the cases against him. Accordingly,
the informations in Criminal Cases Nos. 10499, 10500, 10501, 10502 and 10503 should be
dismissed. In view of the foregoing, we find it unnecessary to rule on the other issues
raised by petitioner.

Accordingly, the Court Resolved to give due course to the petition and to grant the same.
The informations in Criminal Cases Nos. 10499, 10500, 10502 and 10503, entitled "People
of the Philippines v. Francisco S. Tatad" are hereby DISMISSED. The temporary
restraining order issued on October 22, 1985 is made permanent.

SO ORDERED.

Teehankee, C.J., Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano,
Gancayco, Padilla, Bidin, Sarmiento, Cortes and Grio-Aquino, JJ., concur.

Criminal Procedure - Rule 112| Page 57 of 80

EN BANC
G.R. No. 113930 March 5, 1996
PAUL G. ROBERTS, JR., RODOLFO C. SALAZAR, LUIS LORENZO, SR., LUIS
LORENZO, JR., AMAURY R. GUTIERREZ, BAYANI N. FABIC, JOSE YULO,
JR., ESTEBAN B. PALANNUAYAN, and WONG FONG FUI, Petitioners, v. THE
COURT OF APPEALS, THE HON. MAXIMIANO ASUNCION, in his capacity as
the Presiding Judge of the Regional Trial Court, Quezon City, Branch 104, HON.
APOLINARIO G. EXEVEA, HON. HENRICK F. GINGOYON, and HON. PHILIP
A. AGUINALDO, in their capacities as Members of the Department of Justice "349"
Committee, and the CITY PROSECUTOR OF QUEZON CITY, respondents.
J. ROBERT DELGADO, petitioner-Intervenor.
DAVIDE, JR., J .:
We are urged in this petition to set aside (a) the decision of the Court of Appeals of 28
September 1993 in CA-G.R. SP No. 31226,
1
which dismissed the petition therein on the
ground that it has been "mooted with the release by the Department of Justice of its
decision . . . dismissing petitioners' petition for review"; (b) the resolution of the said court
of 9 February 1994
2
denying the petitioners' motion to reconsider the decision; (c) the
order of 17 May 1993
3
of respondent Judge Maximiano C. Asuncion of Branch 104 of the
Regional Trial Court (RTC) of Quezon City in Criminal Case No. Q-93-43198 denying
petitioners' motion to suspend proceedings and to hold in abeyance the issuance of the
warrants of arrest and the public prosecutor's motion to defer arraignment; and (d) the
resolutions of 23 July 1993 and 3 February 1994
4
of the Department of Justice (DOJ)
dismissing petitioners' petition for the review of the Joint Resolution of the Assistant City
Prosecutor of Quezon City and denying the motion to reconsider the dismissal,
respectively.
The petitioners rely on the following grounds for the grant of the reliefs prayed for in this
petition:
I
Respondent Judge acted with grave abuse of discretion when he ordered the arrest of the
petitioners without examining the record of the preliminary investigation and in
determining for himself on the basis thereof the existence of probable cause.
II
The Department of Justice "349" Committee acted with grave abuse of discretion when it
refused to review the City Prosecutor's Joint Resolution and dismissed petitioner's appeal
therefrom.
III
The Court of Appeals acted with grave abuse of discretion when it upheld the subject order
directing the issuance of the warrants of arrest without assessing for itself whether based on
such records there is probable cause against petitioners.
IV
The facts on record do not establish prima facie probable cause and Criminal Case No. Q-
93-43198 should have been dismissed.
5

The antecedents of this petition are not disputed.
Several thousand holders
6
of "349" Pepsi crowns in connection with the Pepsi Cola
Products Phils., Inc.'s (PEPSI's) Number Fever Promotion
7
filed with the Office of the
City Prosecutor of Quezon City complaints against the petitioner's in their respective
capacities as Presidents or Chief Executive Officers, Chairman of the Board, Vice-
Chairman of the Board, and Directors of PEPSI, and also against other officials of PEPSI.
The complaints respectively accuse the petitioners and the other PEPSI officials of the
following crimes: (a) estafa; (b) violation of R.A. No. 7394, otherwise known as the
Consumer Act of the Philippines; (c) violation of E.O. No. 913;
8
and (d) violation of Act
No. 2333, entitled "An Act Relative to Untrue, Deceptive and Misleading Advertisements,"
as amended by Act No. 3740.
9

After appropriate proceedings, the investigating prosecutor, Ramon M. Gerona, released on
23 March 1993 a Joint Resolution
10
where he recommended the filing of an information
against the petitioners and others for the violation of Article 318 of the Revised Penal Code
and the dismissal of the complaints for the violation of Article 315, 2(d) of the Revised
Penal Code; R.A. No. 7394; Act No. 2333, as amended by Act No. 3740; and E.O. No.
913. The dispositive portion thereof reads as follows:
In view of all the foregoing, it is recommended that:
1. The attached information be filed against respondents Paul G. Roberts, Jr., Rodolfo C.
Salazar, Rosemarie R. Vera, Luis F. Lorenzo, Sr., Luis P. Lorenzo, Jr., J. Roberto Delgado,
Amaury R. Gutierrez, Bayani N. Fabic, Jose Yulo, Jr., Esteban B. Pacannuayan, Jr., Wong
Fong Fui, Quintin J. Gomez, Jr. and Chito V. Gutierrez for estafa under Article 318,
Revised Penal Code, while the complaint for violation of Article 315, 2(d), Revised Penal
Criminal Procedure - Rule 112| Page 58 of 80

Code against same respondents Juanito R. Ignacio, R. Sobong, R.O. Sinsuan, M.P.
Zarsadias, L.G. Dabao, Jr., R.L. Domingo, N.N. Bacsal, Jesus M. Manalastas, Janette P.
Pio de Roda, Joaquin W. Sampaico, Winefreda O. Madarang, Jack Gravey, Les G. Ham,
Corazon Pineda, Edward S. Serapio, Alex O. Caballes, Sandy Sytangco, Jorge W.
Drysdale, Richard Blossom, Pablo de Borja, Edmundo L. Tan, Joseph T. Cohen, Delfin
Dator, Zosimo B. San Juan, Joaquin Franco, Primitivo S. Javier, Jr., Luisito Guevarra, Asif
H. Adil, Eugenio Muniosguren, James Ditkoff and Timothy Lane be dismissed;
2. The complaints against all respondents for violation of R.A. 7394 otherwise known as
the Consumer Act of the Philippines and violation of Act 2333 as amended by Act 3740
and E.O. 913 be also dismissed for insufficiency of evidence, and
3. I.S. Nos. 92-7833; 92-8710 and 92-P-1065 involving Crowns Nos. 173; 401; and 117,
425, 703 and 373, respectively, alleged to be likewise winning ones be further investigated
to afford respondents a chance to submit their counter-evidence.
11

On 6 April 1993, City Prosecutor Candido V. Rivera approved the recommendation with
the modification that Rosemarie Vera, Quintin Gomez, Jr., and Chito Gonzales be excluded
from the charge on the ground of insufficiency of evidence.
12

The information for estafa attached to the Joint Resolution was approved (on 7 April 1993)
by Ismael P. Casabar, Chief of the Prosecution Division, upon authority of the City
Prosecutor of Quezon City, and was filed with the RTC of Quezon City on 12 April 1993.
It was docketed as Criminal Case No. Q-93-43198.
13
The information reads as follows:
The undersigned 1st Assistant City Prosecutor accuses PAUL G. ROBERTS, JR.
RODOLFO C. SALAZAR, LUIS F. LORENZO, SR., LUIS P. LORENZO, JR., J.
ROBERTO DELGADO, AMAURY R. GUTIERREZ, BAYANI N. FABIC, JOSE YULO,
JR., ESTEBAN B. PACANNUAYAN, JR. and WONG FONG FUI, of the crime of
ESTAFA, committed as follows:
That in the month of February, 1992, in Quezon City, Philippines and for sometime prior
and subsequent thereto, the above-named
accused
Paul G. Roberts, Jr. ) being then the Presidents
Rodolfo G. Salazar ) and Executive Officers
Luis F. Lorenzo, Sr. ) being then the Chairman
of the Board of Directors
Luis P. Lorenzo, Jr. ) being then the Vice
Chairman of the Board
J. Roberto Delgado )
Amaury R. Gutierrez ) being then Members of
Bayani N. Fabic ) the Board
Jose Yulo, Jr. )
Esteban B. Pacannuayan, )
Jr. and
Wong Fong Fui )
OF THE PEPSI COLA PRODUCTS PHILIPPINES, INC., CONSPIRING with one
another, with intent of gain, by means of deceit, fraudulent acts or false pretenses, executed
prior to or simultaneously with the commission of the fraud, did then and there willfully,
unlawfully and feloniously defraud the private complainants whose names with their prizes
claimed appear in the attached lists marked as Annexes "A" to "A-46"; "B" to "-33"; "C" to
"C-281"; "D" to "D-238"; "E" to "E-30" and "F" to "F-244" in the following manner: on
the date and in the place aforementioned, said accused pursuant to their conspiracy,
launched the Pepsi Cola Products Philippines, Inc. "Number Fever Promotion" from
February 17 to May 8, 1992 later extended to May 11-June 12, 1992 and announced and
advertised in the media that "all holders of crowns and/or caps of Pepsi, Mirinda, Mountain
Dew and Seven-up bearing the winning 3-digit number will win the full amount of the
prize printed on the crowns/caps which are marked with a seven-digit security code as a
measure against tampering or faking of crowns and each and every number has its own
unique matching security code", enticing the public to buy Pepsi softdrinks with
aforestated alluring and attractive advertisements to become millionaires, and by virtue of
such representations made by the accused, the said complainants bought Pepsi softdrinks,
but, the said accused after their TV announcement on May 25, 1992 that the winning
number for the next day was "349", in violation of their aforecited mechanics, refused as
they still refuse to redeem/pay the said Pepsi crowns and/or caps presented to them by the
complainants, who, among others, were able to buy Pepsi softdrinks with crowns/caps
bearing number "349" with security codes L-2560-FQ and L-3560-FQ, despite repeated
demands made by the complainants, to their damage and prejudice to the extent of the
amount of the prizes respectively due them from their winning "349" crowns/caps, together
with such amounts they spent in going to and from the Office of Pepsi to claim their prizes
Criminal Procedure - Rule 112| Page 59 of 80

and such other amounts used in buying Pepsi softdrinks which the complainants normally
would not have done were it not for the false, fraudulent and deceitful posters of Pepsi Cola
Products Philippines, Inc.
CONTRARY TO LAW.
On 14 April 1993, the petitioners filed with the Office of the City Prosecutor a motion for
the reconsideration of the Joint Resolution
14
alleging therein that (a) there was neither
fraud in the Number Fever Promotion nor deviation from or modification of the
promotional rules approved by the Department of Trade and Industry (DTI), for from the
start of the promotion, it had always been clearly explained to the public that for one to be
entitled to the cash prize his crown must bear both the winning number and the correct
security code as they appear in the DTI list; (b) the complainants failed to allege, much less
prove with prima facie evidence, the specific overt criminal acts or omissions purportedly
committed by each of the petitioners; (c) the compromise agreement entered into by PEPSI
is not an admission of guilt; and (d) the evidence establishes that the promo was carried out
with utmost good faith and without malicious intent.
On 15 April 1993, the petitioners filed with the DOJ a Petition for Review
15
wherein, for
the same grounds adduced in the aforementioned motion for reconsideration, they prayed
that the Joint Resolution be reversed and the complaints dismissed. They further stated that
the approval of the Joint Resolution by the City Prosecutor was not the result of a careful
scrutiny and independent evaluation of the relevant facts and the applicable law but of the
grave threats, intimidation, and actual violence which the complainants had inflicted on
him and his assistant prosecutors.
On that same date, the petitioners filed in Criminal Case No. Q-93-43198 Motions to
Suspend Proceedings and to Hold in Abeyance Issuance of Warrants of Arrest on the
ground that they had filed the aforesaid Petition for Review.
16

On 21 April 1993, acting on the Petition for Review, Chief State Prosecutor Zenon L. de
Guia issued a 1st Indorsement,
17
directing the City Prosecutor of Quezon City to inform
the DOJ whether the petitioners have already been arraigned, and if not, to move in court
for the deferment of further proceedings in the case and to elevate to the DOJ the entire
records of the case, for the case is being treated as an exception pursuant to Section 4 of
Department Circular No. 7 dated 25 January 1990.
On 22 April 1993, Criminal Case No. Q-93-41398 was raffle to Branch 104 of the RTC of
Quezon City.
18

In the morning of 27 April 1993, private prosecutor Julio Contreras filed an Ex-
ParteMotion for Issuance of Warrants of Arrest.
19

In the afternoon of that same day, petitioner Paul Roberts, Jr., filed a Supplemental Urgent
Motion to Hold in Abeyance Issuance of Warrant of Arrest and to Suspend
Proceedings.
20
He stressed that the DOJ had taken cognizance of the Petition for Review
by directing the City Prosecutor to elevate the records of I.S. No. P-4401 and its related
cases and asserted that the petition for review was an essential part of the petitioners' right
to a preliminary investigation.
The next day, respondent Judge Asuncion, Presiding Judge of Branch 104 of the RTC of
Quezon City, issued an order advising the parties that his court would "be guided by the
doctrine laid down by the Supreme Court in the case of Crespo vs. Mogul, 151 SCRA 462
and not by the resolution of the Department of Justice on the petition for review undertaken
by the accused."
21

On 30 April 1993, Assistant City Prosecutor Tirso M. Gavero filed with the trial court a
Motion to Defer Arraignment wherein he also prayed that "further proceedings be held in
abeyance pending final disposition by the Department of Justice."
22

On 4 May 1993, Gavero filed an Amended Information,
23
accompanied by a
corresponding motion
24
to admit it. The amendments merely consist in the statement that
the complainants therein were only "among others" who were defrauded by the accused
and that the damage or prejudice caused amounted "to several billions of pesos,
representing the amounts due them from their winning '349' crowns/caps." The trial court
admitted the amended information on the same date.
25

Later, the attorneys for the different private complainants filed, respectively, an Opposition
to Motion to Defer Arraignment,
26
and Objection and Opposition to Motion to Suspend
Proceedings and to Hold in Abeyance the Issuance of Warrants of Arrest.
27

On 14 May 1993, the petitioners filed a Memorandum in Support of their Motion to
Suspend Proceedings and to Hold in Abeyance the Issuance of the Warrants of Arrest.
28

On 17 May 1993, respondent Judge Asuncion issued the challenged order (1) denying the
petitioners' Motion to Suspend Proceedings and to Hold in Abeyance Issuance of Warrants
of Arrest and the public prosecutor's Motion to Defer Arraignment and (2) directing the
issuance of the warrants of arrest "after June 1993" and setting the arraignment on 28 June
1993.
29
Pertinent portions of the order read as follows:
In the Motion filed by the accused, it is alleged that on April 15, 1993, they filed a petition
for review seeking the reversal of the resolution of City Prosecutor of Quezon City
approving the filing of the case against the accused, claiming that:
1. The resolution constituting [sic] force and duress;
Criminal Procedure - Rule 112| Page 60 of 80

2. There was no fraud or deceit therefore there can be no estafa;
3. No criminal overt acts by respondents were proved;
4. Pepsi nor the accused herein made no admission of guilt before the Department of Trade
and Industry;
5. The evidence presented clearly showed no malicious intent on the part of the accused.
Trial Prosecutor Tirso M. Gavero in his Motion to Defer Arraignment averred that there is
a pending petition for review with the Department of Justice filed by the accused and the
Office of the City Prosecutor was directed, among other things, to cause for the deferment
of further proceedings pending final disposition of said Petition by the Department of
Justice.
The motions filed by the accused and the Trial Prosecutor are hereby DENIED.
This case is already pending in this Court for trial. To follow whatever opinion the
Secretary of Justice may have on the matter would undermine the independence and
integrity of this Court. This Court is still capable of administering justice.
The Supreme Court in the case of Crespo vs. Mogul (SCRA 151, pp. 471-472) stated as
follows:
In order therefor to avoid such a situation whereby the opinion of the Secretary of Justice
who reviewed the action of the fiscal may be disregarded by the trial court, the Secretary of
Justice should, as far as practicable, refrain from entertaining a petition for review or
appeal from the action of the fiscal, when the complaint or information has already been
filed in Court. The matter should be left entirely for the determination of the Court.
WHEREFORE, let warrant of arrest be issued after June 21, 1993, and arraignment be set
on June 28, 1993, at 9:30 in the morning.
On 7 June 1993, the petitioners filed with the Court of Appeals a special civil action
forcertiorari and prohibition with application for a temporary restraining order,
30
which
was docketed as CA-G.R. SP No. 31226. They contended therein that respondent Judge
Asuncion had acted without or in excess of jurisdiction or with grave abuse of discretion in
issuing the aforementioned order of 17 May 1993 because
I. RESPONDENT JUDGE FAILED TO EXAMINE THE RECORD OF PRELIMINARY
INVESTIGATION BEFORE ORDERING THE ARREST OF PETITIONERS.
II. THERE IS NO PROBABLE CAUSE TO HOLD PETITIONERS CRIMINALLY
LIABLE FOR ESTAFA, OTHER DECEITS, OR ANY OTHER OFFENSE.
III. THE PROCEEDINGS BELOW SHOULD HAVE BEEN SUSPENDED TO AWAIT
THE SECRETARY OF JUSTICE'S RESOLUTION OF PETITIONERS' APPEAL, AND
IV. THERE IS NO OTHER PLAIN, SPEEDY AND ADEQUATE REMEDY IN THE
ORDINARY COURSE OF LAW.
On 15 June 1993, the Court of Appeals issued a temporary restraining order to maintain
the status quo.
31
In view thereof; respondent Judge Asuncion issued an order on 28 June
1993
32
postponing indefinitely the arraignment of the petitioners which was earlier
scheduled on that date.
On 28 June 1993, the Court of Appeals heard the petitioners' application for a writ of
preliminary injunction, granted the motion for leave to intervene filed by J. Roberto
Delgado, and directed the Branch Clerk of Court of the RTC of Quezon City to elevate the
original records of Criminal Case No. 4-93-43198.
33

Upon receipt of the original records of the criminal case, the Court of Appeals found that a
copy of the Joint Resolution had in fact been forwarded to, and received by, the trial court
on 22 April 1993, which fact belied the petitioners' claim that the respondent Judge had not
the slightest basis at all for determining probable cause when he ordered the issuance of
warrants of arrest. It ruled that the Joint Resolution "was sufficient in itself to have been
relied upon by respondent Judge in convincing himself that probable cause indeed exists
for the purpose of issuing the corresponding warrants of arrest"; and that the "mere silence
of the records or the absence of any express declaration" in the questioned order as to the
basis of such finding does not give rise to an adverse inference, for the respondent Judge
enjoys in his favor the presumption of regularity in the performance of his official duty.
The Court of Appeals then issued a resolution
34
denying the application for a writ of
preliminary injunction.
On 8 June 1993, the petitioners filed a motion to reconsider
35
the aforesaid resolution. The
Court of Appeals required the respondents therein to comment on the said motion.
36

On 3 August 1993, the counsel for the private complainants filed in CA-G.R. SP No. 31226
a Manifestation
37
informing the court that the petitioners' petition for review filed with the
DOJ was dismissed in a resolution dated 23 July 1993. A copy
38
of the resolution was
attached to the Manifestation.
On 21 September 1993, the public respondents filed in CA-G.R. SP No. 31226 a motion to
dismiss the petition
39
on the ground that it has become moot and academic in view of the
Criminal Procedure - Rule 112| Page 61 of 80

dismissal by the DOJ of the petitioners' petition to review the Joint Resolution. The
dismissal by the DOJ is founded on the following exposition:
You questioned the said order of the RTC before the Court of Appeals and prayed for the
issuance of a writ of preliminary injunction to restrain the Trial Judge from issuing any
warrant of arrest and from proceeding with the arraignment of the accused. The appellate
court in a resolution dated July 1, 1993, denied your petition.
In view of the said developments, it would be an exercise in futility to continue reviewing
the instant cases for any further action on the part of the Department would depend on the
sound discretion of the Trial Court. The denial by the said court of the motion to defer
arraignment filed at our instance was clearly an exercise of its discretion. With the issuance
of the order dated May 17, 1993, Trial Court was in effect sending a signal to this
Department that "the determination of the case is within its exclusive jurisdiction and
competence." The rule is that ". . . once a complaint or information is filed in Court, any
disposition of the case as to dismissal or the conviction or acquittal of the accused rests in
the sound discretion of the Court. Although the fiscal retains the direction and control of
the prosecution of criminal cases even while the case is already in Court, he cannot impose
his opinion on the trial court. The court is the best and sole judge on what to do with the
case before it. . . ." (Crespo vs. Mogul, 151 SCRA 462).
40

On 28 September 1993, the Court of Appeals promulgated a decision
41
dismissing the
petition because it had been "mooted with the release by the Department of Justice of its
decision . . . dismissing petitioners' petition for review by inerrantly upholding the criminal
court's exclusive and unsupplantable authority to control the entire course of the case
brought against petitioners, reiterating with approval the dictum laid down in the 'Crespo'
case."
The petitioners filed a motion to reconsider the DOJ's dismissal of the petition citing
therein its resolutions in other similar cases which were favorable to the petitioners and
adverse to other "349" Pepsi crowns holders.
In its resolution of 3 February 1994, the DOJ, through its "349" Committee, denied the
motion and stated: "The instant petition is different from the other petitions resolved by this
Department in similar cases from
the provinces. In the latter petitions, the complaints against herein respondents [sic]
42
were
dismissed inasmuch as the informations have not yet been filed or even if already filed in
court, the proceedings have been suspended by the courts to await the outcome of the
appeal pending with this Department."
43

The petitioners likewise filed a motion to reconsider
44
the aforesaid Court of Appeals'
decision, which the said court denied in its resolution
45
of 9 February 1994. Hence, the
instant petition.
The First Division of this Court denied due course to this petition in its resolution of 19
September 1994.
46

On 7 October 1994, the petitioners filed a motion for the
reconsideration
47
of the aforesaid resolution. Acting thereon, the First Division required
the respondents to comment thereon.
Later, the petitioners filed a supplemental motion for reconsideration
48
and a motion to
refer this case to the Court en banc.
49
In its resolution of 14 November 1994,
50
the First
Division granted the latter motion and required the respondents to comment on the
supplemental motion for reconsideration.
In the resolution of 24 November 1994, the Court en banc accepted the referral.
On 10 October 1995, after deliberating on the motion for reconsideration and the
subsequent pleadings in relation thereto, the Court en banc granted the motion for
reconsideration; reconsidered and set aside the resolution of 19 September 1994; and
reinstated the petition. It then considered the case submitted for decision, "since the parties
have exhaustively discussed the issues in their pleadings, the original records of Criminal
Case No. Q-93-43198 and of CA-G.R. SP No. 31226 had been elevated to this Court, and
both the petitioners and the Office of the Solicitor General pray, in effect, that this Court
resolve the issue of probable cause on the basis thereof."
The pleadings of the parties suggest for this Court's resolution the following key issues:
1. Whether public respondent Judge Asuncion committed grave abuse of discretion in
denying, on the basis of Crespo vs. Mogul, the motions to suspend proceedings and hold in
abeyance the issuance of warrants of arrest and to defer arraignment until after the petition
for review filed with the DOJ shall have been resolved.
2. Whether public respondent Judge Asuncion committed grave abuse of discretion in
ordering the issuance of warrants of arrest without examining the records of the
preliminary investigation.
3. Whether the DOJ, through its "349" Committee, gravely abused its discretion in
dismissing the petition for review on the following bases: (a) the resolution of public
respondent Court of Appeals denying the application for a writ of preliminary injunction
and (b) of public respondent Asuncion's denial of the abovementioned motions.
Criminal Procedure - Rule 112| Page 62 of 80

4. Whether public respondent Court of Appeals committed grave abuse of discretion (a) in
denying the motion for a writ of preliminary injunction solely on the ground that public
respondent Asuncion had already before him the Joint Resolution of the investigating
prosecutor when he ordered the issuance of the warrants of arrest, and (b) in ultimately
dismissing the petition on the ground of mootness since the DOJ had dismissed the petition
for review.
5. Whether this Court may determine in this proceedings the existence of probable cause
either for the issuance of warrants of arrest against the petitioners or for their prosecution
for the crime of estafa.
We resolve the first four issues in the affirmative and the fifth, in the negative.
I.
There is nothing in Crespo vs. Mogul
51
which bars the DOJ from taking cognizance of an
appeal, by way 'of a petition for review, by an accused in a criminal case from an
unfavorable ruling of the investigating prosecutor. It merely advised the DOJ to, "as far as
practicable, refrain from entertaining a petition for review or appeal from the action of the
fiscal, when the complaint or information has already been filed in Court." More
specifically, it stated:
In order therefore to avoid such a situation whereby the opinion of the Secretary of Justice
who reviewed the action of the fiscal may be disregarded by the trial court, the Secretary of
Justice should, as far as practicable, refrain from entertaining a petition for review or
appeal from the action of the fiscal, when the complaint or information has already been
filed in Court. The matter should, be left entirely for the determination of the Court.
52

In Marcelo vs. Court of Appeals,
53
this Court explicitly declared:
Nothing in the said ruling forecloses the power or authority of the Secretary of Justice to
review resolutions of his subordinates in criminal cases. The Secretary of Justice is only
enjoined to refrain as far as practicable from entertaining a petition for review or appeal
from the action of the prosecutor once a complaint or information is filed in court. In any
case, the grant of a motion to dismiss, which the prosecution may file after the Secretary of
Justice reverses an appealed resolution, is subject to the discretion of the court.
Crespo could not have intended otherwise without doing violence to, or repealing, the last
paragraph of Section 4, Rule 112 of the Rules of Court
54
which recognizes the authority of
the Secretary of Justice to reverse the resolution of the provincial or city prosecutor or chief
state prosecutor upon petition by a proper party.
Pursuant to the said provision, the Secretary of Justice had promulgated the rules on
appeals from resolutions in preliminary investigation. At the time the petitioners filed their
petition for the review of the Joint Resolution of the investigating prosecutor, the
governing rule was Circular No. 7, dated 25 January 1990. Section 2 thereof provided that
only resolutions dismissing a criminal complaint may be appealed to the Secretary of
Justice. Its Section 4,
55
however, provided an exception, thus allowing, upon a showing of
manifest error or grave abuse of discretion, appeals from resolutions finding probable
cause, provided that the accused has not been arraigned.
The DOJ gave due course to the petitioners' petition for review as an exception pursuant to
Section 4 of Circular No. 7.
Meanwhile, the DOJ promulgated on 30 June 1993 Department Order No. 223
56
which
superseded Circular No. 7. This Order, however, retained the provisions of Section 1 of the
Circular on appealable cases and Section 4 on the non-appealable cases and the exceptions
thereto.
There is nothing in Department Order No. 223 which would warrant a recall of the
previous action of the DOJ giving due course to the petitioners' petition for review. But
whether the DOJ would affirm or reverse the challenged Joint Resolution is still a matter of
guesswork. Accordingly, it was premature for respondent Judge Asuncion to deny the
motions to suspend proceedings and to defer arraignment on the following grounds:
This case is already pending in this Court for trial. To follow whatever opinion the
Secretary of Justice may have on the matter would undermine the independence and
integrity of this Court. This Court is still capable of administering justice.
The real and ultimate test of the independence and integrity of his court is not the filing of
the aforementioned motions at that stage of the proceedings but the filing of a motion to
dismiss or to withdraw the information on the basis of a resolution of the petition for
review reversing the Joint Resolution of the investigating prosecutor. Before that time, the
following pronouncement in Crespo did not yet truly become relevant or applicable:
The rule therefore in this jurisdiction is that once a complaint or information is filed in
Court any disposition of the case as its dismissal or the conviction or acquittal of the
accused rests in the sound discretion of the court. Although the fiscal retains the direction
and control of the prosecution of criminal cases even while the case is already in court he
cannot impose his opinion on the trial court. The court is the best and sole judge on what to
do with the case before it. The determination of the case is within its exclusive jurisdiction
and competence. A motion to dismiss the case filed by the fiscal should be addressed to the
Court who has the option to grant or deny the same. It does not matter if this is done before
or after the arraignment of the accused or that the motion was filed after a reinvestigation
Criminal Procedure - Rule 112| Page 63 of 80

or upon instructions of the Secretary of Justice who reviewed the records of the
investigation.
57

However, once a motion to dismiss or withdraw the information is filed the trial judge may
grant or deny it, not out of subservience to the Secretary of Justice, but in faithful exercise
of judicial prerogative. This Court pertinently stated so in Martinez vs. Court of Appeals:
58

Whether to approve or disapprove the stand taken by the prosecution is not the exercise of
discretion required in cases like this. The trial judge must himself be convinced that there
was indeed no sufficient evidence against the accused, and this conclusion can be arrived at
only after an assessment of the evidence in the possession of the prosecution. What was
imperatively required was the trial judge's own assessment of such evidence, it not being
sufficient for the valid and proper exercise of judicial discretion merely to accept the
prosecution's word for its supposed insufficiency.
As aptly observed the Office of the Solicitor General, in failing to make an independent
finding of the merits of the case and merely anchoring the dismissal on the revised position
of the prosecution, the trial judge relinquished the discretion he was duty bound to
exercise. In effect, it was the prosecution, through the Department of Justice which decided
what to do and not the court which was reduced to a mere rubber stamp in violation of the
ruling in Crespo v.Mogul.
II.
Section 2, Article III of the present Constitution provides that no search warrant or warrant
of arrest shall issue except upon probable cause to be determined personally by the judge
after examination under oath or affirmation of the complainant and the witnesses he may
produce.
Under existing laws, warrants of arrest may be issued (1) by the Metropolitan Trial Courts
(MeTCs) except those in the National Capital Region, Municipal Trial Courts (MTCs), and
Municipal Circuit Trial Courts (MCTCs) in cases falling within their exclusive original
jurisdiction;
59
in cases covered by the rule on summary procedure where the accused fails
to appear when required;
60
and in cases filed with them which are cognizable by the
Regional Trial Courts (RTCs);
61
and (2) by the Metropolitan Trial Courts in the National
Capital Region (MeTCs-NCR) and the RTCs in cases filed with them after appropriate
preliminary investigations conducted by officers authorized to do so other than judges of
MeTCs, MTCs and MCTCs.
62

As to the first, a warrant can issue only if the judge is satisfied after an examination in
writing and under oath of the complainant and the witnesses, in the form of searching
questions and answers, that a probable cause exists and that there is a necessity of placing
the respondent under immediate custody in order not to frustrate the ends of justice.
As to the second, this Court held in Soliven vs. Makasiar
63
that the judge is not required to
personally examine the complainant and the witnesses, but
[f]ollowing established doctrine and procedure, he shall: (1) personally evaluate the report
and supporting documents submitted by the fiscal regarding the existence of probable
cause and, on the basis thereof; issue a warrant of arrest; or (2) if on the basis thereof he
finds no probable cause, he may disregard the fiscal's report and require the submission of
supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence
of probable cause.
64

Sound policy supports this procedure, "otherwise judges would be unduly laden with the
preliminary examination and investigation of criminal complaints instead of concentrating
on hearing and deciding cases filed before their courts." It must be emphasized that judges
must not rely solely on the report or resolution of the fiscal (now prosecutor); they must
evaluate the report and the supporting document. In this sense, the aforementioned
requirement has modified paragraph 4(a) of Circular No. 12 issued by this Court on 30
June 1987 prescribing the Guidelines on Issuance of Warrants of Arrest under Section 2,
Article III of the 1987 Constitution, which provided in part as follows:
4. In satisfying himself of the existence of a probable cause for the issuance of a warrant of
arrest, the judge, following established doctrine and procedure, may either:
(a) Rely upon the fiscal's certification of the existence of probable cause whether or not the
case is cognizable only by the Regional Trial Court and on the basis thereof, issue a
warrant of arrest. . . .
This requirement of evaluation not only of the report or certification of the fiscal but also
of the supporting documents was further explained in People v. Inting,
65
where this Court
specified what the documents may consist of, viz., "the affidavits, the transcripts of
stenographic notes (if any), and all other supporting documents behind the Prosecutor's
certification which are material in assisting the Judge to make his determination" of
probable cause. Thus:
We emphasize the important features of the constitutional mandate that ". . . no search
warrant or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge . . ." (Article III, Section 2, Constitution).
Criminal Procedure - Rule 112| Page 64 of 80

First, the determination of probable cause is a function of the Judge. It is not for the
Provincial Fiscal or Prosecutor nor the Election Supervisor to ascertain. Only the Judge
and the Judge alone makes this determination.
Second, the preliminary inquiry made by a Prosecutor does not bind the Judge. It merely
assists him to make the determination of probable cause. The Judge does not have to follow
what the Prosecutor presents to him. By itself, the Prosecutor's certification of probable
cause is ineffectual. It is the report, the affidavits, the transcripts of stenographic notes (if
any), and all other supporting documents behind the Prosecutor's certification which are
material in assisting the Judge to make his determination.
In adverting to a statement in People vs. Delgado
66
that the judge may rely on the
resolution of the Commission on Elections (COMELEC) to file the information by the
same token that it may rely on the certification made by the prosecutor who conducted the
preliminary investigation in the issuance of the warrant of arrest, this Court stressed inLim
vs. Felix
67
that
Reliance on the COMELEC resolution or the Prosecutor's certification presupposes that
the records of either the COMELEC or the Prosecutor have been submitted to the Judge
and he relies on the certification or resolution because the records of the investigation
sustain the recommendation. The warrant issues not on the strength of the certification
standing alone but because of the records which sustain it.
And noting that judges still suffer from the inertia of decisions and practice under the 1935
and 1973 Constitutions, this Court found it necessary to restate the rule "in greater detail
and hopefully clearer terms." It then proceeded to do so, thus:
We reiterate the ruling in Soliven vs. Makasiar that the Judge does not have to personally
examine the complainant and his witnesses. The Prosecutor can perform the same functions
as a commissioner for the taking of the evidence. However, there should be a report and
necessary documents supporting the Fiscal's bare certification. All of these should be
before the Judge.
The extent of the Judge's personal examination of the report and its annexes depends on the
circumstances of each case. We cannot determine beforehand how cursory or exhaustive
the Judge's examination should be. The Judge has to exercise sound discretion for, after all,
the personal determination is vested in the Judge by the Constitution. It can be as brief as
or detailed as the circumstances of each case require. To be sure, the Judge must go beyond
the Prosecutor's certification and investigation report whenever necessary. He should call
for the complainant and witnesses themselves to answer the court's probing questions when
the circumstances of the case so require.
This Court then set aside for being null and void the challenged order of respondent Judge
Felix directing the issuance of the warrants of arrest against petitioners Lim, et al., solely
on the basis of the prosecutor's certification in the informations that there existed probable
cause "without having before him any other basis for his personal determination of the
existence of a probable cause."
In Allado vs. Diokno,
68
this Court also ruled that "before issuing a warrant of arrest, the
judge must satisfy himself that based on the evidence submitted there is sufficient proof
that a crime has been committed and that the person to be arrested is probably guilty
thereof."
In the recent case of Webb vs. De Leon,
69
this Court rejected the thesis of the petitioners of
absence of probable cause and sustained the investigating panel's and the respondent
Judge's findings of probable cause. After quoting extensively from Soliven
vs. Makasiar,
70
this Court explicitly pointed out:
Clearly then, the Constitution, the Rules of Court, and our case law repudiate the
submission of petitioners that respondent judges should have conducted "searching
examination of witnesses" before issuing warrants of arrest against them. They also reject
petitioners' contention that a judge must first issue an order of arrest before issuing a
warrant of arrest. There is no law or rule requiring the issuance of an Order of Arrest prior
to a warrant of arrest.
In the case at bar, the DOJ Panel submitted to the trial court its 26-page report, the two
(2) sworn statements of Alfaro and the sworn statements of Carlos Cristobal and Lolita
Birrer as well as the counter-affidavits of the petitioners. Apparently, the painstaking
recital and analysis of the parties' evidence made in the DOJ Panel Report satisfied both
judges that there is probable cause to issue warrants of arrest against petitioners. Again, we
stress that before issuing warrants of arrest, judges merely determine personally the
probability, not the certainty of the guilt of an accused. In doing so, judges do not conduct
a de novohearing to determine the existence of probable cause. They just personally review
the initial determination of the prosecutor finding a probable cause to see if it is supported
by substantial evidence. The sufficiency of the review process cannot be measured by
merely counting minutes and hours. The fact that it took the respondent judges a few hours
to review and affirm the probable cause determination of the DOJ Panel does not mean
they made no personal evaluation of the evidence attached to the records of the case.
(emphasis supplied)
The teachings then of Soliven, Inting, Lim, Allado, and Webb reject the proposition that the
investigating prosecutor's certification in an information or his resolution which is made
the basis for the filing of the information, or both, would suffice in the judicial
determination of probable cause for the issuance of a warrant of arrest. In Webb, this Court
assumed that since the respondent Judges had before them not only the 26-page resolution
Criminal Procedure - Rule 112| Page 65 of 80

of the investigating panel but also the affidavits of the prosecution witnesses and even
the counter-affidavits of the respondents, they (judges) made personal evaluation of the
evidence attached to the records of the case.
Unfortunately, in Criminal Case No. Q-93-43198, nothing accompanied the information
upon its filing on 12 April 1993 with the trial court. As found by the Court of Appeals in its
resolution of 1 July 1993, a copy of the Joint Resolution was forwarded to, and received
by, the trial court only on 22 April 1993. And as revealed by the certification
71
of Branch
Clerk of Court Gibson Araula, Jr., no affidavits of the witnesses, transcripts of stenographic
notes of the proceedings during the preliminary investigation, or other documents
submitted in the course thereof were found in the records of Criminal Case No. Q-93-
43198 as of 19 May 1993. Clearly, when respondent Judge Asuncion issued the assailed
order of 17 May 1993 directing, among other things, the issuance of warrants of arrest, he
had only the information, amended information, and Joint Resolution as bases thereof. He
did not have the records or evidence supporting the prosecutor's finding of probable cause.
And strangely enough, he made no specific finding of probable cause; he merely directed
the issuance of warrants of arrest "after June 21, 1993." It may, however, be argued that the
directive presupposes a finding of probable cause. But then compliance with a
constitutional requirement for the protection of individual liberty cannot be left to
presupposition, conjecture, or even convincing logic.
III.
As earlier stated, per its 1st Indorsement of 21 April 1993, the DOJ gave due course to the
petitioners' petition for review pursuant to the exception provided for in Section 4 of
Circular No. 7, and directed the Office of the City Prosecutor of Quezon City to forward to
the Department the records of the cases and to file in court a motion for the deferment of
the proceedings. At the time it issued the indorsement, the DOJ already knew that the
information had been filed in court, for which reason it directed the City Prosecutor to
inform the Department whether the accused have already been arraigned and if not yet
arraigned, to move to defer further proceedings. It must have been fully aware that,
pursuant to Crespo vs. Mogul, a motion to dismiss a case filed by the prosecution either as
a consequence of a reinvestigation or upon instructions of the Secretary of Justice after a
review of the records of the investigation is addressed to the trial court, which has the
option to grant or to deny it. Also, it must have been still fresh in its mind that a few
months back it had dismissed for lack of probable cause other similar complaints of holders
of "349" Pepsi crowns.
72
Thus, its decision to give due course to the petition must have
been prompted by nothing less than an honest conviction that a review of the Joint
Resolution was necessary in the highest interest of justice in the light of the special
circumstances of the case. That decision was permissible within the "as far as practicable"
criterion in Crespo.
Hence, the DOJ committed grave abuse of discretion when it executed on 23 July 1993 a
unilateral volte-face, which was even unprovoked by a formal pleading to accomplish the
same end, by dismissing the petition for review. It dismissed the petition simply because it
thought that a review of the Joint Resolution would be an exercise in futility in that any
further action on the part of the Department would depend on the sound discretion of the
trial court, and that the latter's denial of the motion to defer arraignment filed at the
instance of the DOJ was clearly an exercise of that discretion or was, in effect, a signal to
the Department that the determination of the case is within the court's exclusive jurisdiction
and competence. This infirmity becomes more pronounced because the reason adduced by
the respondent Judge for his denial of the motions to suspend proceedings and hold in
abeyance issuance of warrants of arrest and to defer arraignment finds, as yet, no support
in Crespo.
IV.
If the only issue before the Court of Appeals were the denial of the petitioners' Motion to
Suspend Proceedings and to Hold in Abeyance Issuance of Warrants of Arrest and the
public prosecutor's Motion to Defer Arraignment, which were both based on the pendency
before the DOJ of the petition for the review of the Joint Resolution, the dismissal of CA-
G.R. SP No. 31226 on the basis of the dismissal by the DOJ of the petition for review
might have been correct. However, the petition likewise involved the issue of whether
respondent Judge Asuncion gravely abused his discretion in ordering the issuance of
warrants of arrest despite want of basis. The DOJ's dismissal of the petition for review did
not render moot and academic the latter issue.
In denying in its resolution of 1 July 1993 the petitioners' application for a writ of
preliminary injunction to restrain respondent Judge Asuncion from issuing warrants of
arrest, the Court of Appeals justified its action in this wise:
The Joint Resolution was sufficient in itself to have been relied upon by respondent judge
in convincing himself that probable cause indeed exists for the purpose of issuing the
corresponding warrants of arrest. The mere silence of the records or the absence of any
express declaration in the questioned Order of May 17, 1993 as to where the respondent
Judge based his finding of probable cause does not give rise to any adverse inference on his
part. The fact remains that the Joint Resolution was at respondent Judge's disposal at the
time he issued the Order for the issuance of the warrants of arrest. After all, respondent
Judge enjoys in his favor the presumption of regularity in the performance of official
actuations. And this presumption prevails until it is overcome by clear and convincing
evidence to the contrary. Every reasonable intendment will be made in support of the
presumption, and in case of doubt as to an officer's act being lawful or unlawful it should
be construed to be lawful. (31 C.J.S., 808-810. See also Mahilum, et al. vs. Court of
Appeals, 17 SCRA 482; People vs. Cortez, 21 SCRA 1228; Government of the P.I. vs.
Galarosa, 36 Phil. 338).
Criminal Procedure - Rule 112| Page 66 of 80

We are unable to agree with this disquisition, for it merely assumes at least two things: (1)
that respondent Judge Asuncion had read and relied on the Joint Resolution and (2) he was
convinced that probable cause exists for the issuance of the warrants of arrest against the
petitioners. Nothing in the records provides reasonable basis for these assumptions. In his
assailed order, the respondent Judge made no mention of the Joint Resolution, which was
attached to the records of Criminal Case No. Q-93-43198 on 22 April 1993. Neither did he
state that he found probable cause for the issuance of warrants of arrest. And, for an
undivinable reason, he directed the issuance of warrants of arrest only "after June 21,
1993." If he did read the Joint Resolution and, in so reading, found probable cause, there
was absolutely no reason at all to delay for more than one month the issuance of warrants
of arrest. The most probable explanation for such delay could be that the respondent Judge
had actually wanted to wait for a little while for the DOJ to resolve the petition for review.
It is, nevertheless, contended in the dissenting opinion of Mr. Justice Reynato S. Puno that
whatever doubts may have lingered on the issue of probable cause was dissolved when no
less than the Court of Appeals sustained the finding of probable cause made by the
respondent Judge after an evaluation of the Joint Resolution. We are not persuaded with
that opinion. It is anchored on erroneous premises. In its 1 July 1993 resolution, the Court
of Appeals does not at all state that it either sustained respondent Judge Asuncion's finding
of probable cause, or found by itself probable cause. As discussed above, it merely
presumed that Judge Asuncion might have read the Joint Resolution and found probable
cause from a reading thereof. Then too, that statement in the dissenting opinion erroneously
assumes that the Joint Resolution can validly serve as sufficient basis for determining
probable cause. As stated above, it is not.
V.
In criminal prosecutions, the determination of probable cause may either be an executive or
a judicial prerogative. In People vs. Inting,
73
this Court aptly stated:
And third, Judges and Prosecutors alike should distinguish the preliminary inquiry which
determines probable cause for the issuance of a warrant of arrest from a preliminary
investigation proper which ascertains whether the offender should be held for trial or
released. Even if the two inquiries are conducted in the course of one and the same
proceeding, there should be no confusion about the objectives. The determination of
probable cause for the warrant of arrest is made by the Judge. The preliminary
investigation proper whether or not there is reasonable ground to believe that the accused is
guilty of the offense charged and, therefore, whether or not he should be subjected to the
expense, rigors and embarrassment of
trial is the function of the Prosecutor.
. . . .
We reiterate that preliminary investigation should be distinguished as to whether it is an
investigation for the determination of a sufficient ground for the filing of the information or
it is an investigation for the determination of a probable cause for the issuance of a warrant
of arrest. The first kind of preliminary investigation is executive in nature. It is part of the
prosecution's job. The second kind of preliminary investigation which is more properly
called preliminary examination is judicial in nature and is lodged with the judge. . . .
Ordinarily, the determination of probable cause is not lodged with this Court. Its duty in an
appropriate case is confined to the issue of whether the executive or judicial determination,
as the case may be, of probable cause was done without or in excess of jurisdiction or with
grave abuse of discretion amounting to want of jurisdiction. This is consistent with the
general rule that criminal prosecutions may not be restrained or stayed by injunction,
preliminary or final. There are, however, exceptions to this rule. Among the exceptions are
enumerated in Brocka vs. Enrile
74
as follows:
a. To afford adequate protection to the constitutional rights of the accused (Hernandez vs.
Albano, et al., L-19272, January 25, 1967, 19 SCRA 95);
b. When necessary for the orderly administration of justice or to avoid oppression or
multiplicity of actions (Dimayuga, et al. vs. Fernandez, 43 Phil. 304; Hernandez vs.
Albano, supra; Fortun vs. Labang, et al., L-38383, May 27, 1981, 104 SCRA 607);
c. When there is a pre-judicial question which is sub judice (De Leon vs. Mabanag, 70 Phil.
202);
d. When the acts of the officer are without or in excess of authority (Planas vs. Oil, 67 Phil.
62);
e. Where the prosecution is under an invalid law, ordinance or regulation (Young vs.
Rafferty, 33 Phil. 556; Yu Cong Eng vs. Trinidad, 47 Phil. 385, 389);
f. When double jeopardy is clearly apparent (Sangalang vs. People and Avendia, 109 Phil.
1140);
g. Where the court has no jurisdiction over the offense (Lopez vs. City Judge, L-25795,
October 29, 1966, 18 SCRA 616);
h. Where it is a case of persecution rather than prosecution (Rustia vs. Ocampo, CA-G.R.
No. 4760, March 25, 1960);
Criminal Procedure - Rule 112| Page 67 of 80

i. Where the charges are manifestly false and motivated by the lust for vengeance (Recto
vs. Castelo, 18 L.J. [1953], cited in Raoa vs. Alvendia, CA-G.R. No. 30720-R, October 8,
1962; Cf. Guingona, et al. vs. City Fiscal, L-60033, April 4, 1984, 128 SCRA 577); and
j. When there is clearly no prima facie case against the accused and a motion to quash on
that ground has been denied (Salonga vs. Pao, et al., L- 59524, February 18, 1985, 134
SCRA 438).
7. Preliminary injunction has been issued by the Supreme Court to prevent to threatened
unlawful arrest of petitioners (Rodriguez vs. Castelo, L- 6374, August 1, 1953). (cited in
Regalado, Remedial Law Compendium, p. 188, 1988 Ed.)
In these exceptional cases, this Court may ultimately resolve the existence or non-existence
of probable cause by examining the records of the preliminary investigation, as it did
in Salonga vs. Pao,
75
Allado, and Webb.
There can be no doubt that, in light of the several thousand private complainants in
Criminal Case No. Q-93-43198 and several thousands more in different parts of the
country who are similarly situated as the former for being holders of "349" Pepsi crowns,
any affirmative holding of probable cause in the said case may cause or provoke, as justly
feared by the petitioners, the filing of several thousand cases in various courts throughout
the country. Inevitably, the petitioners would be exposed to the harassments of warrants of
arrest issued by such courts and to huge expenditures for premiums on bailbonds and for
travels from one court to another throughout the length and breadth of the archipelago for
their arraignments and trials in such cases. Worse, the filing of these staggering number of
cases would necessarily affect the trial calendar of our overburdened judges and take much
of their attention, time, and energy, which they could devote to other equally, if not more,
important cases. Such a frightful scenario would seriously affect the orderly administration
of justice, or cause oppression or multiplicity of actions a situation already long conceded
by this Court to be an exception to the general rule that criminal prosecutions may not be
restrained or stayed by injunction.
76

We shall not, however, reevaluate the evidence to determine if indeed there is probable
cause for the issuance of warrants of arrest in Criminal Case No. Q-93-43298. For, as
earlier stated, the respondent Judge did not, in fact, find that probable cause exists, and if
he did he did not have the basis therefor as mandated by Soliven, Inting, Lim, Allado, and
even Webb. Moreover, the records of the preliminary investigation in Criminal Case No.
Q-93-43198 are not with this Court. They were forwarded by the Office of the City
Prosecutor of Quezon City to the DOJ in compliance with the latter's 1st Indorsement of 21
April 1993. The trial court and the DOJ must be required to perform their duty.
WHEREFORE, the instant petition is GRANTED and the following are hereby SET
ASIDE:
(a) Decision of 28 September 1993 and Resolution of 9 February 1994 of respondent Court
of Appeals in CA-G.R. SP No. 31226;
(b) The Resolutions of the "349" Committee of the Department of Justice of 23 July 1993
dismissing the petitioners' petition for review and of 3 February 1994 denying the motion
to reconsider the dismissal; and
(c) The Order of respondent Judge Maximiano C. Asuncion of 17 May 1993 in Criminal
Case No. Q-93-43198.
The Department of Justice is DIRECTED to resolve on the merits, within sixty (60) days
from notice of this decision, the petitioners' petition for the review of the Joint Resolution
of Investigating Prosecutor Ramon Gerona and thereafter to file the appropriate motion or
pleading in Criminal Case No. Q-93-43198, which respondent Judge Asuncion shall then
resolve in light of Crespo vs. Mogul, Soliven vs. Makasiar, People vs. Inting, Lim
vs. Felix,Allado vs. Diokno, and Webb vs. De Leon.
In the meantime, respondent Judge Asuncion is DIRECTED to cease and desist from
further proceeding with Criminal Case No. Q-93-43198 and to defer the issuances of
warrants of arrest against the petitioners.
No pronouncement as to costs.
SO ORDERED.
Padilla, Bellosillo, Vitug and Hermosisima, Jr., JJ., concur.
Kapunan, J., concurs in the result.
Francisco and Panganiban, JJ., took no part.
Separate Opinions
NARVASA, C.J ., concurring:
I agree with the disposition of the case proposed by Mr. Justice Hilario G. Davide in his
dissenting opinion, that the determination of whether or not probable cause exists to
Criminal Procedure - Rule 112| Page 68 of 80

warrant the prosecution in court of the petitioners should be consigned and entrusted to the
Department of Justice, as reviewer of the findings of the public prosecutors concerned.
In this special civil action, this Court is being asked to assume the function of a public
prosecutor. It is being asked to determine whether probable cause exists as regards
petitioners. More concretely, the Court is being asked to examine and assess such evidence
as has thus far been submitted by the parties and, on the basis thereof, make a conclusion as
to whether or not it suffices "to engender a well founded belief that a crime has been
committed and that the respondent is probable guilty thereof and should be held for trial."
1

It is a function that this Court should nut be called upon to perform. It is a function that
properly pertains to the public prosecutor,
2
one that, as far as crimes cognizable by a
Regional Trial Court are concerned, and notwithstanding that it involves an adjudicative
process of a sort,
3
exclusively pertains, by law, to said executive officer, the public
prosecutor.
4
It is moreover a function that in the established scheme of things, is supposed
to be performed at the very genesis of, indeed, prefatorily to, the formal commencement of
a criminal action.
5
The proceedings before a public prosecutor, it may well be stressed, are
essentially preliminary, prefatory, and cannot lead to a final, definite and authoritative
adjudgment of the guilt or innocence of the persons charged with a felony or crime.
6

Whether or not that function has been correctly discharged by the public prosecutor i.e.,
whether or not he has made a correct ascertainment of the existence of probable cause in a
case is a matter that the trial court itself does not and may not be compelled to pass
upon.
7
There is no provision of law authorizing an aggrieved party to petition for such a
determination. It is not for instance permitted for an accused, upon the filing of an
information against him by the public prosecutor, to preempt trial by filing a motion with
the Trial Court praying for the quashal or dismissal of the indictment on the ground that
the evidence upon which the same is based is inadequate. Nor is it permitted, on the
antipodal theory that the evidence is in truth adequate, for the complaining party to present
a petition before the Court praying that the public prosecutor be compelled to file the
corresponding information against the accused.
8

Besides, the function that this Court is asked to perform is that of a trier of facts which it
does not generally do,
9
and if at all, only exceptionally, as in an appeal in a criminal action
where the penalty of life imprisonment, reclusion perpetua, or death has been imposed by a
lower court (after due trial, of course),
10
or upon a convincing showing of palpable error as
regards a particular factual conclusion in the judgment of such lower court.
11

What, in sum, is being attempted in this Court is to reverse the established and permanent
order of things for the Court to act before trial and judgment by a lower tribunal; to require
it to perform the role of trier of facts which, to repeat, it does not generally do, the issues
properly cognizable by it being normally limited exclusively to questions of law;
12
to
make it do something that even the trial court may not do at this stage of the proceedings
itself to determine the existence of probable cause; to usurp a duty that exclusively pertains
to an executive official
13
to a preliminary investigation or review the findings and
conclusions of the public prosecutor who conducted one.
The matter is not within the review jurisdiction of the Court as this is clearly specified in
the Constitution,
14
a jurisdiction which even the Congress may not increase "without . . .
(the Court's) advice and concurrence."
15

From the pragmatic aspect, it is also an undesirable thing, for the result could well be an
increase the already considerable work load of the Court.
Furthermore, any judgment of this Court in this action would be inconclusive, as above
intimated. It would not necessarily end the case. It would not, for instance, prevent the
complaining witnesses from presenting additional evidence in an effort to have the
information ultimately filed in the proper court against the accused, or the respondents
from asking for a reinvestigation and presenting additional or other evidence warranting
the dropping of the case. The Court would thus have wielded judicial power without a
definite settlement of rights and liabilities.
There are set rules, and procedural mechanisms in place for the determination of probable
cause at the level of the public prosecutor, the Department of Justice and, to a certain
extent, the Regional Trial Court. No recourse to this Court should normally be allowed to
challenge their determinations and dispositions. I therefore vote to refer to the Department
of Justice for resolution, the petition for the review of the Joint Resolution issued by
Investigating Prosecutor Ramon Gerona.
Vitug, J., concurs.
PUNO, J ., dissenting:
I
The constitutional policy of speedy adjudication of cases demand that we now affirm or
reverse the judicial finding of probable cause to hold petitioners for trial on the charge of
estafa. Pepsi's Number Fever Promotion, the root cause of the case at bar, was held way
back in 1992. Since 1993, City Prosecutor Candido Rivera of Quezon City, RTC Judge
Maximiano Asuncion and the Court of Appeals have uniformly found the existence of
probable cause against petitioners. It is now 1996 and petitioners have yet to be tried in
court. Three (3) long years of expensive litigation on the part of private respondents,
mostly belonging to the powerless of our people, will go to naught by remanding the case
to the Department of Justice for another executive determination of the issue of probable
cause.
Criminal Procedure - Rule 112| Page 69 of 80

To be sure, the case at bar is deeply impressed with public interest. On one hand are some
12,000 people holding "349" Pepsi crowns and who have long been clamoring for payment
of their prize money. Their collective claim runs to billions of pesos. On the other hand is
petitioners' business integrity which needs a shield from false and malicious charges. We
should decide this dispute with dispatch and with little resort to procedural technicalities,
otherwise, our people's search for justice will be too wearisome a toil.
II
Pursuant to this precis, I will skip capillary issues and immediately go to the heart of the
case i.e., determine whether the respondent Court of Appeals committed reversible error in
affirming the respondent trial judge who found probable cause to hold petitioners for trial
on the charge of estafa. The concept of probable cause is not a high level legal abstraction
to be the subject of warring thoughts. It is well established that "a finding of probable cause
needs only to rest on evidence showing that more likely than not a crime has been
committed and was committed by the suspects. Probable cause need not be based on clear
and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable
doubt, and definitely not on evidence establishing absolute certainty of guilt."
1

On the basis of the evidence presented by the parties in a long and exhaustive preliminary
investigation, Quezon City Prosecutor Rivera determined that there is a sufficient ground to
engender a well founded belief that petitioners committed estafa. City Prosecutor Rivera
approved the findings of First Assistant City Prosecutor Ramon M. Gerona contained in a
17-page Joint Resolution. I quote in extenso the factual findings relied upon by the
prosecutors in finding probable cause, viz.:
xxx xxx xxx
The complaints-affidavits and replies by complainant and counter-affidavits and rejoinder
by respondents as well as arguments and counter- arguments from both sides may be
summed up to three simple but comprehensive issues, to wit:
1. Was there fraud or deceit committed by Pepsi through respondents prior to or
simultaneously with their deliberate act of refusal to pay complainants the prizes indicated
in their crown/caps?
2. Did Pepsi officials, herein respondents, comply with the rules and regulations imposed
by the DTI especially on the mechanics of the promotion, or deviation, modification,
addition or deletion of aforenamed mechanics?
3. Was there a way respondents could have avoided the fraud?
Relative to the first and second issues, respondents insist that they had complied with all
the requirements or conditions imposed by the DTI particularly with respect to the prior
approval of the latter of the mechanics of the promotion. Respondent likewise contend that
the deviation of the duly approved mechanics of the promotion was also approved by the
DTI. In this regard, Section 10.1 of the Ministry Order No. 33 reads as follows:
10.1 All advertisements, brochures or any printed material indicating or describing the
mechanics of the promotion shall conform with the mechanics approved by this Bureau.
Any deviation, modification, addition or deletion shall first be submitted to this Bureau for
approval.
Parenthetically, the contention by respondents that the mechanics of the promotion was
approved by the DTI is not in question, but, the additional contention that the deviation
thereof was likewise approved by the DTI is not supported by or does not jibe with the
facts. The report of Task Force DTI, page 14 thereof, says and we quote:
It appears that after the "349" controversy which came about during the extension period of
Pepsi "Number Fever" promo, the significance of the security code as a measure against
tampering and faking of the crowns or caps has been modified. For after May 26, 1995 the
"349" number surfaced to have both winning and non-winning security codes." (emphasis
supplied)
Page 15 of the same Task Force Report reads:
The DTI-NRC records show that the modification/deviation on the use of security code as
explained in the trade posters and other joint advertisements was never submitted for
approval in violation of the specific requirements of 10.1 of Memorandum Order No. 33.
As to why only number "349" has both a winning and non-winning security code, Mr. Q.J.
Gomez, Jr. could not amplify the same except by testifying that the supplier from Mexico
gives them the list of winning numbers and security codes together with the master list of
the non-winning number which were done through a computer program.
Respondents admit that only "349" was given two kinds of security codes, winning and
non-winning. This condition was added by respondents while the promo was going on and
after "349" had been announced as winner. The modification sans approval by the DTI as
shown in the preceding DTI findings to the extent that the holders of the '"349" crowns are
prejudiced or damaged after said number had been drawn and announced as winner
constitutes deceit, commencing from the date of the launching of the promotion sometime
in February 1992 up to the present with Pepsi's refusal to honor complainants' demand for
payment.
Criminal Procedure - Rule 112| Page 70 of 80

The alteration was found to be factual by the DTI in the last portion of the Task Force
Report which says with specifity:
xxx xxx xxx
The TF (Task Force) however noted it was only for No. "349" that a deviation in the use of
security code from what was originally approved by the DTI-NCR was made. In all the
other winning numbers PPCPI and PCI complied with the approved mechanics. (Emphasis
supplied)
Indeed, the mechanics mentioned the use of "a 3 digit security code as a measure against
tampering or faking the crowns" and that "each and every number has its own unique,
matching security code." (counter-affidavit, Rosemarie Vera, p. 13).
It is worth reproducing complainants' discussion of these two points in their Memorandum.
Let us analyze these two rules:
4.2 The first rule defines the purposes of the security code, which is to provide the basis for
detecting whether or not a crown containing a winning number is fake, spurious or
tampered with. By the wording of this rule, a genuine, true and real Pepsi, Mirinda, 7-up or
Mountain Dew crown bearing a winning number, as drawn and announced, could not
possibly lose in the promo. The genuineness of the crown will be assured by the security
code; and the drawn winning number it bears will make it win.
In other words, the certainty about the genuineness of the crown that is, not fake or
tampered with is the objective of the security code, not the crown's number being a
winning number. Stated otherwise, the rule, as published makes the security code the
determinant of the genuineness of the crown, not the winning quality of the number it
bears.
Deliberately, however, Pepsi is now applying this rule nay, bending it (see par. 4.6.1.
Counter-Affidavit) to make the security code determinant of which, among the crowns
bearing the winning number "349," is really a winner! By giving the rule unwarranted and
on-second thought application, Pepsi has effectively defrauded complainants of their
prizes. Is this not deceit?
4.3 The second rule above-stated must be tackled in conjunction with par. 4.6 of the
Counter-Affidavit which shows the meaning of the term "number" as used in this rule. It
means "A 3-digit number ranging from 001 to 999" found under the specially-maked
crowns of softdrinks manufactured and sold by Pepsi.
The rule uses the term "unique" which the dictionary defines as "Being the only one of its
kind" (Funk and Gagnalls Standard) and "without another of the same kind" (Webster's). A
contextual and syntactical appreciation of the rule would tell us that there is only one
security code of each number under the crown for insuring the genuineness of the crown.
It is thus clear under the rule in question that "349" has its own unique 7-digit security code
to insure that the crown bearing it is not fake or tampered with, do all the other winning
numbers have or should have. But what did Pepsi do after "349" was drawn as a winner on
May 25, 1992? Pepsi announced that "349" did not have only one unique security code, but
that it had both "winning" and "non-winning" security codes. The security code of "349"
was not the one unique, but "349" itself became unique because it became a winning and
non-winning number at the same time. Was this unique "uniqueness" of "349" announced
at the start of the promo? No! When was the revelation made? Only after "349" was drawn
as a winner and numerous-thousands of winning crown holders had stormed the Pepsi
plants all over the country, specially along Aurora Boulevard, Quezon City, claiming their
prizes.
The actuations of Pepsi vis-a-vis the above-stated two rules are indubitable cases of
"changing the rules as the game is being played" to defraud the winners of the prizes. If
DECEIT has many faces, this is one of the ugliest among them.
We also concur with the argument of complainants that additional deceit was committed by
respondents when they attempted to substitute number "123" for number "349" as the
winning number announced and drawn on May 24, 1992 and the closure of Pepsi Plant
along Aurora Boulevard previously announced as redemption center for winning crowns.
The acts of respondents were described by complainants as a continuation of their adamant
refusal to pay and even hear the claims of complainants who thereby sustained damage not
for their expenses for transportation but for the amounts of prizes absolutely denied them,
let alone their expense in buying Pepsi softdrinks in quantities beyond their normal needs.
There is merit in the description.
The third issue is could Pepsi have remedied the fraud? Definitely, by taking reasonable
steps in paying the "349" holders. Pepsi could not have succeeded in requesting approval
by DTI of the deviation from and/or modification of the mechanics previously approved as
an alternative remedy since sanctioning such deviation or modification could have placed
DTI in equal footing with respondents, making them co-conspirators to the fraud.
The pertinent provision of the Revised Penal Code reads as follows:
Art. 318. Other Deceits. The penalty of Arresto Mayor and a fine of not less than the
amount of the damage caused and not more than twice such amount shall be imposed upon
Criminal Procedure - Rule 112| Page 71 of 80

any person who shall defraud or damage another by any other deceit not mentioned in the
preceding Articles of this Chapter.
As aptly contended by complainants any other kind of conceivable deceit may fall under
this Article. As in other cases of estafa, damage to the offended party is required (Reyes,
Revised Penal Code, p. 775, Book 2, 11th Ed. 1977).
Fraudulently obtaining a loan on the promise that realty would be mortgaged as security for
said loan which promise was not fulfilled because the borrower sold the property would
constitute estafa under Article 318 . . .
Complainants have, to our mind, succeeded in proving deceit and fraud by respondents to
avoid payment of prizes complainants are claiming in the "Number Fever Promotion" for
the "349" winning number to hold respondents, whose names we will hereinafter
enumerate, liable for estafa (Art. 318, RPC).
The prosecutors' finding of probable cause rests on two (2) critical facts established by
substantial evidence: one, that petitioners deviated from the Department of Trade and
Industry (DTI) rules when they required that only "349" crowns with security codes can
win, and two, that petitioners attempted to substitute "134" for "349" as the winning
number. These acts were interpreted by the prosecutors as prima facie deceitful and
fraudulent. I do not see how the resolution of the prosecutors finding sufficient ground to
charge petitioners with estafa can be successfully assailed as grave abuse of discretion.
III
To be sure, respondent judge Asuncion affirmed the prosecutors' finding when petitioners
challenged its validity. He found probable cause against the petitioners and ordered their
arrest. The majority opinion faults the procedure followed by Judge Asuncion in issuing
the warrants of arrest against petitioners. It cites two (2) reasons, viz.: (1) that Judge
Asuncion issued the warrants merely on the basis of the Information, Amended
Information and Joint Resolution of the City Prosecutors of Quezon City; he did not check
and consult the complete records of the case which include the affidavits of the witnesses,
transcripts of stenographic notes and other documents submitted in the preliminary
investigation; and (2) Judge Asuncion did not expressly make any finding of probable
cause.
The procedure to be followed by a judge in reviewing the finding of probable cause by a
prosecutor has long been a quiescent area. In Soliven vs. Makasiar,
2
we laid down the
following procedure, viz.:
xxx xxx xxx
The second issue, raised by Beltran, calls for an interpretation of the constitutional
provision on the issuance of warrants of arrest. The pertinent provision reads:
Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized.
The addition of the word "personally" after the word "determined" and the deletion of the
grant of authority by the 1973 Constitution to issue warrants to "other responsible officers
as may be authorized by law" has apparently convinced petitioner Beltran that the
Constitution now requires the judge to personally examine the complainant and his
witnesses in his determination of probable cause for the issuance of warrants of arrest. This
is not an accurate interpretation.
What the Constitution underscores is the exclusive and personal responsibility of the
issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of
the existence of probable cause for the issuance of a warrant of arrest, the judge is not
required to personally examine the complainant and his witnesses. Following established
doctrine and procedure, he shall: (1) personally evaluate the report and the supporting
documents submitted by the fiscal regarding the existence of probable cause and, on the
basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable
cause, he may disregard the fiscal's report and require the submission of supporting
affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable
cause.
Sound policy dictates this procedure, otherwise judges would be unduly laden with the
preliminary examination and investigation of criminal complaints instead of concentrating
on hearing and deciding cases filed before their courts.
Soliven and other related
3
cases did not establish the absolute rule that unless a judge has
the complete records of the preliminary investigation before him, he cannot lawfully
determine probable cause and issue a warrant of arrest. Soliven only held that it is the
personal responsibility of the judge to determine probable cause on the basis of the report
and supporting documents submitted by the fiscal; that he must independently evaluate the
report and supporting documents submitted by the fiscal; and, if he finds no probable cause
on the basis thereof, he can require submission of additional supporting affidavits of
witnesses. There is nothing in Soliven that requires prosecutors to submit to the judge the
complete records of the preliminary investigation especially if they are voluminous. Nor is
there anything in Soliven that holds that the omission to physically submit the complete
records of the case would constitutionally infirm a finding of probable cause by a judge
Criminal Procedure - Rule 112| Page 72 of 80

even if it was made on the basis of an exhaustive prosecutor's report or resolution. Indeed,
in Webb vs. de Leon,
4
we sustained the finding of probable cause made by the trial judge
even if the complete records of the preliminary investigation were not elevated to the said
judge.
A revisit of our case law will reveal that what we condemned in the past as constitutionally
impermissible was the practice of judges of totally relying on pro formacertifications of
fiscals that they conducted a preliminary investigation and found probable cause that the
accused committed the crime charged in the Information. These pro formacertifications
usually consisted of a short sentence. They did not relate the relevant proceedings in the
preliminary investigation nor did they calibrate the weight of diverse and dueling evidence
submitted by the parties. These bare certifications carried no findings of fact and made no
legal analysis which could be used by judges as a rational basis for a determination of
probable cause. Thus, we laid down the jurisprudence that a judge who determines
probable cause by relying on such meaningless certifications violates the constitutional
provision prohibiting issuance of warrants of arrest ". . . except upon probable cause to be
determined personally by the judge . . .
The case at bar does not involve these outlawed certifications. The respondent Court of
Appeals found that the 17-page Joint Resolution of the prosecutors provided the trial judge
with sufficient factual basis to find probable cause and to issue warrants of arrest against
the petitioners. To repeat, the finding of probable cause against petitioners rests on two (2)
critical facts established by evidence: one, that petitioners deviated from the Department of
Trade and Industry rules when they required that only "349" crowns with security codes
could win, and two, that petitioners attempted to substitute "134" for "349" as the winning
number. The finding of deviation is based on the Task Force Report of the DTI, the
relevant portion of which was liberally quoted in the prosecutors' Joint Resolution. The
finding of attempt at substitution was taken from the affidavits of witnesses of the private
respondents. Petitioners do not charge that the Task Force Report of the DTI and the
affidavits of witnesses of the private respondents were incorrectly quoted by the
prosecutors in their joint Resolution. Thus, respondent judge need not be burdened by the
duty of ordering the elevation of the complete records of the preliminary investigation to
check the accuracy of the critical evidence as stated in the Joint Resolution.
The majority opinion also flays Judge Asuncion allegedly because
". . . he made no finding of probable cause . . ." I am not disposed to make this serious
charge. When Judge Asuncion issued the warrants of arrest against petitioners, I assume as
did the respondent Court of Appeals, that he had studied the Information and 17-page
Resolution of the prosecutors and that he agreed with the prosecutors' finding of probable
cause. It is unnecessary for him to issue an Order just to reiterate the findings of the
prosecutors. It ought to be likewise underscored that before Judge Asuncion issued the
warrants of arrest, the matter of probable cause was the subject of exhaustive pleadings
before him. Thus, the parties submitted the following for the respondent judge's
consideration: (1) Motions to Suspend Proceedings and to Hold in Abeyance Issuance of
Warrants of Arrest; (2) Motion for Issuance of Warrants of Arrest; (3) Supplemental
Urgent Motion to Hold in Abeyance Issuance of Warrants of Arrest and to Suspend
Proceedings; (4) Opposition to Motion to Defer Arraignment; (5) Objection and Opposition
to Motion to Suspend Proceedings and to Hold in Abeyance the Issuance of Warrants of
Arrest; and (6) Memorandum in Support of the Motion to Suspend Proceedings and to
Hold in Abeyance the Issuance of the Warrants of Arrest. In these pleadings, the parties,
especially the petitioners, discussed in length and in depth the findings of the prosecutors
as contained in their 17-page Joint Resolution. It is, thus, erroneous to assume that the
respondent judge had nothing before him when he ruled that there is probable cause to
charge petitioners with estafa.
With due respect to the majority, the ruling that a judge should always order the elevation
of the complete records of a preliminary investigation before proceeding with the task of
reviewing the finding of probable cause made by prosecutors will exacerbate the mischief
of delays in the disposition of criminal cases. This will not sit well with our people who are
complaining that their continuing calls for speedy justice are only receiving dial tones from
courts. The transcription of stenographic notes and the transfer of physical and
documentary evidence, especially when voluminous, will consume time, result in loss of
valuable evidence and aggravate the burden of litigants. It is my humble submission that
the forwarding of complete records is not necessary when the prosecutor's report is
exhaustive and accurate as in the case at bar.
IV
The majority has deviated from the general rule when it set aside the finding of probable
cause made by the respondent Court of Appeals and the respondent trial judge. To be sure,
this Court can restrain the prosecution of criminal prosecutions in exceptional cases. These
exceptional cases are:
5

a. To afford adequate protection to the constitutional rights of the accused (Hernandez vs.
Albano, et al., L-19272, January 25, 1967, 19 SCRA 95);
b. When necessary for the orderly administration of justice or to avoid oppression or
multiplicity of actions (Dimayuga, et al. vs. Fernandez, 43 Phil. 304; Hernandez vs.
Albano, supra; Fortun vs. Labang, et al., L-38383, May 27, 1981, 104 SCRA 607);
c. When there is a prejudicial question which is sub judice (De Leon vs. Mabanag, 70 Phil.
202);
d. When the acts of the officer are without or in excess of authority (Planas vs. Gil, 67 Phil.
62);
Criminal Procedure - Rule 112| Page 73 of 80

e. Where the prosecution is under an invalid law, ordinance or regulation (Young vs.
Rafferty, 33 Phil. 556; Yu Cong Eng vs. Trinidad, 47 Phil. 385, 389);
f. When double jeopardy is clearly apparent (Sangalang vs. People and Avendia, 109 Phil.
1140);
g. Where the court has no jurisdiction over the offense (Lopez vs. City Judge, L-25795,
October 29, 1966, 18 SCRA 616)
h. Where it is a case of persecution rather than prosecution (Rustia vs. Ocampo, CA-G.R.
4760, March 25, 1960);
i. Where the charges are manifestly false and motivated by the lust for vengeance (Recto
vs. Castelo, 18 L.J. [1953], cited in Ranoa vs. Alvendia, CA-G.R. No. 30720-R, October 8,
1962, cf. Guingona, et al. vs. City Fiscal, L-60033, April 4, 1984, 128 SCRA 577); and
j. Where there is clearly no prima facie case against the accused and a motion to quash on
that ground has been denied (Salonga vs. Pano, et al., L-59524, February 19, 1985, 134
SCRA 438).
7. Preliminary injunction has been issued by the Supreme Court to prevent the threatened
unlawful arrest of petitioners (Rodriguez vs. Castelo, L-6374, August 1, 1953). (cited in
Regalado, Remedial Law Compendium, p. 288, 1988 Ed.)
It must be stressed, however, that in these exceptional cases, the Court took the
extraordinary step of annulling findings of probable cause either to prevent the misuse of
the strong arm of the law or to protect the orderly administration of justice. The
constitutional duty of this Court in criminal litigations is not only to acquit the innocent
after trial but to insulate, from the start, the innocent from unfounded charges. For the
Court is aware of the strains of a criminal accusation and the stresses of litigation which
should not be suffered by the clearly innocent. The filing of an unfounded criminal
information in court exposes the innocent to severe distress especially when the crime is
not bailable. Even an acquittal of the innocent will not fully bleach the dark and deep stains
left by a baseless accusation for reputation once tarnished remains tarnished for a long
length of time. The expense to establish innocence may also be prohibitive and can be
more punishing especially to the poor and the powerless. Innocence ought to be enough
and the business of this Court is to shield the innocent from senseless suits right from the
start.
I respectfully submit, however, that the peculiar facts obtaining in the case at bar do not
warrant us to take the exceptional step of setting aside the finding of probable cause made
by the respondent appellate court and the trial court. Their finding is supported by
substantial evidence and the issuance of warrants of arrest against the petitioners to hold
them for trial for estafa does not constitute misuse of prosecutorial powers. To be sure,
petitioners will be exposed to the inconvenience of facing numerous similar criminal suits
but so long as the inconvenience is no more than what is necessary to dispense justice, they
have no cause to gripe for justice equally belongs to the private respondents.
V
It is also respectfully submitted that the Department of Justice did not act with grave abuse
of discretion when it refused to review the City Prosecutor's Joint Resolution and dismissed
petitioners' appeal. The applicable case law is Crespo vs. Mogul, et al.,
6
where we held:
xxx xxx xxx
The rule therefore in this jurisdiction is that once a complaint or information is filed in
Court any disposition of the case as its dismissal or the conviction or acquittal of the
accused rests in the sound discretion of the Court. Although the fiscal retains the direction
and control of the prosecution of criminal cases even while the case is already in Court he
cannot impose his opinion on the trial court. The Court is the best and sole judge on what
to do with the case before it. The determination of the case is within its exclusive
jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be
addressed to the Court who has the option to grant or deny the same. It does not matter if
this is done before or after the arraignment of the accused or that the motion was filed after
a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records
of the investigation.
In order therefore to avoid such a situation whereby the opinion of the Secretary of Justice
who reviewed the action of the fiscal may be disregarded by the trial court, the Secretary of
Justice should, as far as practicable, refrain from entertaining a petition for review or
appeal from the action of the fiscal, when the complaint or information has already been
filed in Court. The matter should be left entirely for the determination of the Court.
I concede that respondent judge Asuncion misread Crespo when he denied the
prosecution's Motion to Defer Further Proceedings on the ground that ". . . to follow
whatever opinion the Secretary of Justice may have on the matter would undermine the
independence and integrity of this Court." I agree that Crespo did not prohibit the
Department of Justice from reviewing resolutions of its prosecutors even if the proper
informations have already been filed with the courts. Crespo merely counselled the
Secretary of Justice to refrain from exercising said power of review "as far as practicable"
taking into account the broader interest for a more orderly administration of justice. In
exceptional instances where it is practicable for the Secretary of Justice to exercise the
power of review, courts should not be heard to complain that their independence will be
Criminal Procedure - Rule 112| Page 74 of 80

undermined. The dispensation of justice is not the monopoly of courts. It is as much the
responsibility of the two other great branches of our government, the Executive and the
Legislative.
Nevertheless, the refusal of the respondent Judge Asuncion to defer proceedings based on a
misperception of Crespo is now of deminimis importance. The initial decision of the DOJ
to review petitioners' case was due to its impression that the finding of probable cause
made by the prosecutors of Quezon City was, at that time, open to honest contentions. This
doubt, however, dissolved when no less than the respondent Court of Appeals sustained the
finding of probable cause made by the respondent judge after an evaluation of the Joint
Resolution of the Quezon City prosecutors. With the imprimatur of the respondent Court of
Appeals on the existence of probable cause and following Crespo, it is no longer
"practicable" for the DOJ to further review petitioners' case. Contrary to the impression of
the majority, the appellate court affirmed the ruling of respondent judge on probable cause
only after a long and deliberate study of the issue. The issue of probable cause was the
subject of oral arguments and extensive pleadings before the appellate court which even
directed the elevation of the original records of Criminal Case No. Q-93-43198. The
probability that the DOJ will reach a finding different from the appellate court is nil
considering that it will be reviewing the same set of evidence.
Finally, petitioners justify the need for DOJ to review their case in view of the latter's
alleged contradictory rulings on cases brought by different parties involving the same
controversy. The DOJ has denied the charge that it has issued contradictory rulings. But if
these contradictory rulings were truly rendered by DOJ, there is more reason for DOJ to let
the issue be resolved by the courts. As ultimate arbiters of rights in conflict, only the courts
can write finis to the controversy between petitioners and private respondents.
I vote to dismiss the petition.
Regalado, Romero, Melo and Mendoza, JJ., concur.

Separate Opinions
NARVASA, C.J ., concurring:
I agree with the disposition of the case proposed by Mr. Justice Hilario G. Davide in his
dissenting opinion, that the determination of whether or not probable cause exists to
warrant the prosecution in court of the petitioners should be consigned and entrusted to the
Department of Justice, as reviewer of the findings of the public prosecutors concerned.
In this special civil action, this Court is being asked to assume the function of a public
prosecutor. It is being asked to determine whether probable cause exists as regards
petitioners. More concretely, the Court is being asked to examine and assess such evidence
as has thus far been submitted by the parties and, on the basis thereof, make a conclusion as
to whether or not it suffices "to engender a well founded belief that a crime has been
committed and that the respondent is probable guilty thereof and should be held for trial."
1

It is a function that this Court should nut be called upon to perform. It is a function that
properly pertains to the public prosecutor,
2
one that, as far as crimes cognizable by a
Regional Trial Court are concerned, and notwithstanding that it involves an adjudicative
process of a sort,
3
exclusively pertains, by law, to said executive officer, the public
prosecutor.
4
It is moreover a function that in the established scheme of things, is supposed
to be performed at the very genesis of, indeed, prefatorily to, the formal commencement of
a criminal action.
5
The proceedings before a public prosecutor, it may well be stressed, are
essentially preliminary, prefatory, and cannot lead to a final, definite and authoritative
adjudgment of the guilt or innocence of the persons charged with a felony or crime.
6

Whether or not that function has been correctly discharged by the public prosecutor i.e.,
whether or not he has made a correct ascertainment of the existence of probable cause in a
case is a matter that the trial court itself does not and may not be compelled to pass
upon.
7
There is no provision of law authorizing an aggrieved party to petition for such a
determination. It is not for instance permitted for an accused, upon the filing of an
information against him by the public prosecutor, to preempt trial by filing a motion with
the Trial Court praying for the quashal or dismissal of the indictment on the ground that
the evidence upon which the same is based is inadequate. Nor is it permitted, on the
antipodal theory that the evidence is in truth adequate, for the complaining party to present
a petition before the Court praying that the public prosecutor be compelled to file the
corresponding information against the accused.
8

Besides, the function that this Court is asked to perform is that of a trier of facts which it
does not generally do,
9
and if at all, only exceptionally, as in an appeal in a criminal action
where the penalty of life imprisonment, reclusion perpetua, or death has been imposed by a
lower court (after due trial, of course),
10
or upon a convincing showing of palpable error as
regards a particular factual conclusion in the judgment of such lower court.
11

What, in sum, is being attempted in this Court is to reverse the established and permanent
order of things for the Court to act before trial and judgment by a lower tribunal; to require
it to perform the role of trier of facts which, to repeat, it does not generally do, the issues
properly cognizable by it being normally limited exclusively to questions of law;
12
to
make it do something that even the trial court may not do at this stage of the proceedings
itself to determine the existence of probable cause; to usurp a duty that exclusively pertains
to an executive official
13
to a preliminary investigation or review the findings and
conclusions of the public prosecutor who conducted one.
Criminal Procedure - Rule 112| Page 75 of 80

The matter is not within the review jurisdiction of the Court as this is clearly specified in
the Constitution,
14
a jurisdiction which even the Congress may not increase "without . . .
(the Court's) advice and concurrence."
15

From the pragmatic aspect, it is also an undesirable thing, for the result could well be an
increase the already considerable work load of the Court.
Furthermore, any judgment of this Court in this action would be inconclusive, as above
intimated. It would not necessarily end the case. It would not, for instance, prevent the
complaining witnesses from presenting additional evidence in an effort to have the
information ultimately filed in the proper court against the accused, or the respondents
from asking for a reinvestigation and presenting additional or other evidence warranting
the dropping of the case. The Court would thus have wielded judicial power without a
definite settlement of rights and liabilities.
There are set rules, and procedural mechanisms in place for the determination of probable
cause at the level of the public prosecutor, the Department of Justice and, to a certain
extent, the Regional Trial Court. No recourse to this Court should normally be allowed to
challenge their determinations and dispositions. I therefore vote to refer to the Department
of Justice for resolution, the petition for the review of the Joint Resolution issued by
Investigating Prosecutor Ramon Gerona.
Vitug, J., concurs.
PUNO, J ., dissenting:
I
The constitutional policy of speedy adjudication of cases demand that we now affirm or
reverse the judicial finding of probable cause to hold petitioners for trial on the charge of
estafa. Pepsi's Number Fever Promotion, the root cause of the case at bar, was held way
back in 1992. Since 1993, City Prosecutor Candido Rivera of Quezon City, RTC Judge
Maximiano Asuncion and the Court of Appeals have uniformly found the existence of
probable cause against petitioners. It is now 1996 and petitioners have yet to be tried in
court. Three (3) long years of expensive litigation on the part of private respondents,
mostly belonging to the powerless of our people, will go to naught by remanding the case
to the Department of Justice for another executive determination of the issue of probable
cause.
To be sure, the case at bar is deeply impressed with public interest. On one hand are some
12,000 people holding "349" Pepsi crowns and who have long been clamoring for payment
of their prize money. Their collective claim runs to billions of pesos. On the other hand is
petitioners' business integrity which needs a shield from false and malicious charges. We
should decide this dispute with dispatch and with little resort to procedural technicalities,
otherwise, our people's search for justice will be too wearisome a toil.
II
Pursuant to this precis, I will skip capillary issues and immediately go to the heart of the
case i.e., determine whether the respondent Court of Appeals committed reversible error in
affirming the respondent trial judge who found probable cause to hold petitioners for trial
on the charge of estafa. The concept of probable cause is not a high level legal abstraction
to be the subject of warring thoughts. It is well established that "a finding of probable cause
needs only to rest on evidence showing that more likely than not a crime has been
committed and was committed by the suspects. Probable cause need not be based on clear
and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable
doubt, and definitely not on evidence establishing absolute certainty of guilt."
1

On the basis of the evidence presented by the parties in a long and exhaustive preliminary
investigation, Quezon City Prosecutor Rivera determined that there is a sufficient ground to
engender a well founded belief that petitioners committed estafa. City Prosecutor Rivera
approved the findings of First Assistant City Prosecutor Ramon M. Gerona contained in a
17-page Joint Resolution. I quote in extenso the factual findings relied upon by the
prosecutors in finding probable cause, viz.:
xxx xxx xxx
The complaints-affidavits and replies by complainant and counter-affidavits and rejoinder
by respondents as well as arguments and counter- arguments from both sides may be
summed up to three simple but comprehensive issues, to wit:
1. Was there fraud or deceit committed by Pepsi through respondents prior to or
simultaneously with their deliberate act of refusal to pay complainants the prizes indicated
in their crown/caps?
2. Did Pepsi officials, herein respondents, comply with the rules and regulations imposed
by the DTI especially on the mechanics of the promotion, or deviation, modification,
addition or deletion of aforenamed mechanics?
3. Was there a way respondents could have avoided the fraud?
Relative to the first and second issues, respondents insist that they had complied with all
the requirements or conditions imposed by the DTI particularly with respect to the prior
approval of the latter of the mechanics of the promotion. Respondent likewise contend that
Criminal Procedure - Rule 112| Page 76 of 80

the deviation of the duly approved mechanics of the promotion was also approved by the
DTI. In this regard, Section 10.1 of the Ministry Order No. 33 reads as follows:
10.1 All advertisements, brochures or any printed material indicating or describing the
mechanics of the promotion shall conform with the mechanics approved by this Bureau.
Any deviation, modification, addition or deletion shall first be submitted to this Bureau for
approval.
Parenthetically, the contention by respondents that the mechanics of the promotion was
approved by the DTI is not in question, but, the additional contention that the deviation
thereof was likewise approved by the DTI is not supported by or does not jibe with the
facts. The report of Task Force DTI, page 14 thereof, says and we quote:
It appears that after the "349" controversy which came about during the extension period of
Pepsi "Number Fever" promo, the significance of the security code as a measure against
tampering and faking of the crowns or caps has been modified. For after May 26, 1995 the
"349" number surfaced to have both winning and non-winning security codes." (emphasis
supplied)
Page 15 of the same Task Force Report reads:
The DTI-NRC records show that the modification/deviation on the use of security code as
explained in the trade posters and other joint advertisements was never submitted for
approval in violation of the specific requirements of 10.1 of Memorandum Order No. 33.
As to why only number "349" has both a winning and non-winning security code, Mr. Q.J.
Gomez, Jr. could not amplify the same except by testifying that the supplier from Mexico
gives them the list of winning numbers and security codes together with the master list of
the non-winning number which were done through a computer program.
Respondents admit that only "349" was given two kinds of security codes, winning and
non-winning. This condition was added by respondents while the promo was going on and
after "349" had been announced as winner. The modification sans approval by the DTI as
shown in the preceding DTI findings to the extent that the holders of the '"349" crowns are
prejudiced or damaged after said number had been drawn and announced as winner
constitutes deceit, commencing from the date of the launching of the promotion sometime
in February 1992 up to the present with Pepsi's refusal to honor complainants' demand for
payment.
The alteration was found to be factual by the DTI in the last portion of the Task Force
Report which says with specifity:
xxx xxx xxx
The TF (Task Force) however noted it was only for No. "349" that a deviation in the use of
security code from what was originally approved by the DTI-NCR was made. In all the
other winning numbers PPCPI and PCI complied with the approved mechanics. (Emphasis
supplied)
Indeed, the mechanics mentioned the use of "a 3 digit security code as a measure against
tampering or faking the crowns" and that "each and every number has its own unique,
matching security code." (counter-affidavit, Rosemarie Vera, p. 13).
It is worth reproducing complainants' discussion of these two points in their Memorandum.
Let us analyze these two rules:
4.2 The first rule defines the purposes of the security code, which is to provide the basis for
detecting whether or not a crown containing a winning number is fake, spurious or
tampered with. By the wording of this rule, a genuine, true and real Pepsi, Mirinda, 7-up or
Mountain Dew crown bearing a winning number, as drawn and announced, could not
possibly lose in the promo. The genuineness of the crown will be assured by the security
code; and the drawn winning number it bears will make it win.
In other words, the certainty about the genuineness of the crown that is, not fake or
tampered with is the objective of the security code, not the crown's number being a
winning number. Stated otherwise, the rule, as published makes the security code the
determinant of the genuineness of the crown, not the winning quality of the number it
bears.
Deliberately, however, Pepsi is now applying this rule nay, bending it (see par. 4.6.1.
Counter-Affidavit) to make the security code determinant of which, among the crowns
bearing the winning number "349," is really a winner! By giving the rule unwarranted and
on-second thought application, Pepsi has effectively defrauded complainants of their
prizes. Is this not deceit?
4.3 The second rule above-stated must be tackled in conjunction with par. 4.6 of the
Counter-Affidavit which shows the meaning of the term "number" as used in this rule. It
means "A 3-digit number ranging from 001 to 999" found under the specially-maked
crowns of softdrinks manufactured and sold by Pepsi.
The rule uses the term "unique" which the dictionary defines as "Being the only one of its
kind" (Funk and Gagnalls Standard) and "without another of the same kind" (Webster's). A
Criminal Procedure - Rule 112| Page 77 of 80

contextual and syntactical appreciation of the rule would tell us that there is only one
security code of each number under the crown for insuring the genuineness of the crown.
It is thus clear under the rule in question that "349" has its own unique 7-digit security code
to insure that the crown bearing it is not fake or tampered with, do all the other winning
numbers have or should have. But what did Pepsi do after "349" was drawn as a winner on
May 25, 1992? Pepsi announced that "349" did not have only one unique security code, but
that it had both "winning" and "non-winning" security codes. The security code of "349"
was not the one unique, but "349" itself became unique because it became a winning and
non-winning number at the same time. Was this unique "uniqueness" of "349" announced
at the start of the promo? No! When was the revelation made? Only after "349" was drawn
as a winner and numerous-thousands of winning crown holders had stormed the Pepsi
plants all over the country, specially along Aurora Boulevard, Quezon City, claiming their
prizes.
The actuations of Pepsi vis-a-vis the above-stated two rules are indubitable cases of
"changing the rules as the game is being played" to defraud the winners of the prizes. If
DECEIT has many faces, this is one of the ugliest among them.
We also concur with the argument of complainants that additional deceit was committed by
respondents when they attempted to substitute number "123" for number "349" as the
winning number announced and drawn on May 24, 1992 and the closure of Pepsi Plant
along Aurora Boulevard previously announced as redemption center for winning crowns.
The acts of respondents were described by complainants as a continuation of their adamant
refusal to pay and even hear the claims of complainants who thereby sustained damage not
for their expenses for transportation but for the amounts of prizes absolutely denied them,
let alone their expense in buying Pepsi softdrinks in quantities beyond their normal needs.
There is merit in the description.
The third issue is could Pepsi have remedied the fraud? Definitely, by taking reasonable
steps in paying the "349" holders. Pepsi could not have succeeded in requesting approval
by DTI of the deviation from and/or modification of the mechanics previously approved as
an alternative remedy since sanctioning such deviation or modification could have placed
DTI in equal footing with respondents, making them co-conspirators to the fraud.
The pertinent provision of the Revised Penal Code reads as follows:
Art. 318. Other Deceits. The penalty of Arresto Mayor and a fine of not less than the
amount of the damage caused and not more than twice such amount shall be imposed upon
any person who shall defraud or damage another by any other deceit not mentioned in the
preceding Articles of this Chapter.
As aptly contended by complainants any other kind of conceivable deceit may fall under
this Article. As in other cases of estafa, damage to the offended party is required (Reyes,
Revised Penal Code, p. 775, Book 2, 11th Ed. 1977).
Fraudulently obtaining a loan on the promise that realty would be mortgaged as security for
said loan which promise was not fulfilled because the borrower sold the property would
constitute estafa under Article 318 . . .
Complainants have, to our mind, succeeded in proving deceit and fraud by respondents to
avoid payment of prizes complainants are claiming in the "Number Fever Promotion" for
the "349" winning number to hold respondents, whose names we will hereinafter
enumerate, liable for estafa (Art. 318, RPC).
The prosecutors' finding of probable cause rests on two (2) critical facts established by
substantial evidence: one, that petitioners deviated from the Department of Trade and
Industry (DTI) rules when they required that only "349" crowns with security codes can
win, and two, that petitioners attempted to substitute "134" for "349" as the winning
number. These acts were interpreted by the prosecutors as prima facie deceitful and
fraudulent. I do not see how the resolution of the prosecutors finding sufficient ground to
charge petitioners with estafa can be successfully assailed as grave abuse of discretion.
III
To be sure, respondent judge Asuncion affirmed the prosecutors' finding when petitioners
challenged its validity. He found probable cause against the petitioners and ordered their
arrest. The majority opinion faults the procedure followed by Judge Asuncion in issuing
the warrants of arrest against petitioners. It cites two (2) reasons, viz.: (1) that Judge
Asuncion issued the warrants merely on the basis of the Information, Amended
Information and Joint Resolution of the City Prosecutors of Quezon City; he did not check
and consult the complete records of the case which include the affidavits of the witnesses,
transcripts of stenographic notes and other documents submitted in the preliminary
investigation; and (2) Judge Asuncion did not expressly make any finding of probable
cause.
The procedure to be followed by a judge in reviewing the finding of probable cause by a
prosecutor has long been a quiescent area. In Soliven vs. Makasiar,
2
we laid down the
following procedure, viz.:
xxx xxx xxx
The second issue, raised by Beltran, calls for an interpretation of the constitutional
provision on the issuance of warrants of arrest. The pertinent provision reads:
Criminal Procedure - Rule 112| Page 78 of 80

Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized.
The addition of the word "personally" after the word "determined" and the deletion of the
grant of authority by the 1973 Constitution to issue warrants to "other responsible officers
as may be authorized by law" has apparently convinced petitioner Beltran that the
Constitution now requires the judge to personally examine the complainant and his
witnesses in his determination of probable cause for the issuance of warrants of arrest. This
is not an accurate interpretation.
What the Constitution underscores is the exclusive and personal responsibility of the
issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of
the existence of probable cause for the issuance of a warrant of arrest, the judge is not
required to personally examine the complainant and his witnesses. Following established
doctrine and procedure, he shall: (1) personally evaluate the report and the supporting
documents submitted by the fiscal regarding the existence of probable cause and, on the
basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable
cause, he may disregard the fiscal's report and require the submission of supporting
affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable
cause.
Sound policy dictates this procedure, otherwise judges would be unduly laden with the
preliminary examination and investigation of criminal complaints instead of concentrating
on hearing and deciding cases filed before their courts.
Soliven and other related
3
cases did not establish the absolute rule that unless a judge has
the complete records of the preliminary investigation before him, he cannot lawfully
determine probable cause and issue a warrant of arrest. Soliven only held that it is the
personal responsibility of the judge to determine probable cause on the basis of the report
and supporting documents submitted by the fiscal; that he must independently evaluate the
report and supporting documents submitted by the fiscal; and, if he finds no probable cause
on the basis thereof, he can require submission of additional supporting affidavits of
witnesses. There is nothing in Soliven that requires prosecutors to submit to the judge the
complete records of the preliminary investigation especially if they are voluminous. Nor is
there anything in Soliven that holds that the omission to physically submit the complete
records of the case would constitutionally infirm a finding of probable cause by a judge
even if it was made on the basis of an exhaustive prosecutor's report or resolution. Indeed,
in Webb vs. de Leon,
4
we sustained the finding of probable cause made by the trial judge
even if the complete records of the preliminary investigation were not elevated to the said
judge.
A revisit of our case law will reveal that what we condemned in the past as constitutionally
impermissible was the practice of judges of totally relying on pro formacertifications of
fiscals that they conducted a preliminary investigation and found probable cause that the
accused committed the crime charged in the Information. These pro formacertifications
usually consisted of a short sentence. They did not relate the relevant proceedings in the
preliminary investigation nor did they calibrate the weight of diverse and dueling evidence
submitted by the parties. These bare certifications carried no findings of fact and made no
legal analysis which could be used by judges as a rational basis for a determination of
probable cause. Thus, we laid down the jurisprudence that a judge who determines
probable cause by relying on such meaningless certifications violates the constitutional
provision prohibiting issuance of warrants of arrest ". . . except upon probable cause to be
determined personally by the judge . . .
The case at bar does not involve these outlawed certifications. The respondent Court of
Appeals found that the 17-page Joint Resolution of the prosecutors provided the trial judge
with sufficient factual basis to find probable cause and to issue warrants of arrest against
the petitioners. To repeat, the finding of probable cause against petitioners rests on two (2)
critical facts established by evidence: one, that petitioners deviated from the Department of
Trade and Industry rules when they required that only "349" crowns with security codes
could win, and two, that petitioners attempted to substitute "134" for "349" as the winning
number. The finding of deviation is based on the Task Force Report of the DTI, the
relevant portion of which was liberally quoted in the prosecutors' Joint Resolution. The
finding of attempt at substitution was taken from the affidavits of witnesses of the private
respondents. Petitioners do not charge that the Task Force Report of the DTI and the
affidavits of witnesses of the private respondents were incorrectly quoted by the
prosecutors in their joint Resolution. Thus, respondent judge need not be burdened by the
duty of ordering the elevation of the complete records of the preliminary investigation to
check the accuracy of the critical evidence as stated in the Joint Resolution.
The majority opinion also flays Judge Asuncion allegedly because
". . . he made no finding of probable cause . . ." I am not disposed to make this serious
charge. When Judge Asuncion issued the warrants of arrest against petitioners, I assume as
did the respondent Court of Appeals, that he had studied the Information and 17-page
Resolution of the prosecutors and that he agreed with the prosecutors' finding of probable
cause. It is unnecessary for him to issue an Order just to reiterate the findings of the
prosecutors. It ought to be likewise underscored that before Judge Asuncion issued the
warrants of arrest, the matter of probable cause was the subject of exhaustive pleadings
before him. Thus, the parties submitted the following for the respondent judge's
consideration: (1) Motions to Suspend Proceedings and to Hold in Abeyance Issuance of
Warrants of Arrest; (2) Motion for Issuance of Warrants of Arrest; (3) Supplemental
Criminal Procedure - Rule 112| Page 79 of 80

Urgent Motion to Hold in Abeyance Issuance of Warrants of Arrest and to Suspend
Proceedings; (4) Opposition to Motion to Defer Arraignment; (5) Objection and Opposition
to Motion to Suspend Proceedings and to Hold in Abeyance the Issuance of Warrants of
Arrest; and (6) Memorandum in Support of the Motion to Suspend Proceedings and to
Hold in Abeyance the Issuance of the Warrants of Arrest. In these pleadings, the parties,
especially the petitioners, discussed in length and in depth the findings of the prosecutors
as contained in their 17-page Joint Resolution. It is, thus, erroneous to assume that the
respondent judge had nothing before him when he ruled that there is probable cause to
charge petitioners with estafa.
With due respect to the majority, the ruling that a judge should always order the elevation
of the complete records of a preliminary investigation before proceeding with the task of
reviewing the finding of probable cause made by prosecutors will exacerbate the mischief
of delays in the disposition of criminal cases. This will not sit well with our people who are
complaining that their continuing calls for speedy justice are only receiving dial tones from
courts. The transcription of stenographic notes and the transfer of physical and
documentary evidence, especially when voluminous, will consume time, result in loss of
valuable evidence and aggravate the burden of litigants. It is my humble submission that
the forwarding of complete records is not necessary when the prosecutor's report is
exhaustive and accurate as in the case at bar.
IV
The majority has deviated from the general rule when it set aside the finding of probable
cause made by the respondent Court of Appeals and the respondent trial judge. To be sure,
this Court can restrain the prosecution of criminal prosecutions in exceptional cases. These
exceptional cases are:
5

a. To afford adequate protection to the constitutional rights of the accused (Hernandez vs.
Albano, et al., L-19272, January 25, 1967, 19 SCRA 95);
b. When necessary for the orderly administration of justice or to avoid oppression or
multiplicity of actions (Dimayuga, et al. vs. Fernandez, 43 Phil. 304; Hernandez vs.
Albano, supra; Fortun vs. Labang, et al., L-38383, May 27, 1981, 104 SCRA 607);
c. When there is a prejudicial question which is sub judice (De Leon vs. Mabanag, 70 Phil.
202);
d. When the acts of the officer are without or in excess of authority (Planas vs. Gil, 67 Phil.
62);
e. Where the prosecution is under an invalid law, ordinance or regulation (Young vs.
Rafferty, 33 Phil. 556; Yu Cong Eng vs. Trinidad, 47 Phil. 385, 389);
f. When double jeopardy is clearly apparent (Sangalang vs. People and Avendia, 109 Phil.
1140);
g. Where the court has no jurisdiction over the offense (Lopez vs. City Judge, L-25795,
October 29, 1966, 18 SCRA 616)
h. Where it is a case of persecution rather than prosecution (Rustia vs. Ocampo, CA-G.R.
4760, March 25, 1960);
i. Where the charges are manifestly false and motivated by the lust for vengeance (Recto
vs. Castelo, 18 L.J. [1953], cited in Ranoa vs. Alvendia, CA-G.R. No. 30720-R, October 8,
1962, cf. Guingona, et al. vs. City Fiscal, L-60033, April 4, 1984, 128 SCRA 577); and
j. Where there is clearly no prima facie case against the accused and a motion to quash on
that ground has been denied (Salonga vs. Pano, et al., L-59524, February 19, 1985, 134
SCRA 438).
7. Preliminary injunction has been issued by the Supreme Court to prevent the threatened
unlawful arrest of petitioners (Rodriguez vs. Castelo, L-6374, August 1, 1953). (cited in
Regalado, Remedial Law Compendium, p. 288, 1988 Ed.)
It must be stressed, however, that in these exceptional cases, the Court took the
extraordinary step of annulling findings of probable cause either to prevent the misuse of
the strong arm of the law or to protect the orderly administration of justice. The
constitutional duty of this Court in criminal litigations is not only to acquit the innocent
after trial but to insulate, from the start, the innocent from unfounded charges. For the
Court is aware of the strains of a criminal accusation and the stresses of litigation which
should not be suffered by the clearly innocent. The filing of an unfounded criminal
information in court exposes the innocent to severe distress especially when the crime is
not bailable. Even an acquittal of the innocent will not fully bleach the dark and deep stains
left by a baseless accusation for reputation once tarnished remains tarnished for a long
length of time. The expense to establish innocence may also be prohibitive and can be
more punishing especially to the poor and the powerless. Innocence ought to be enough
and the business of this Court is to shield the innocent from senseless suits right from the
start.
I respectfully submit, however, that the peculiar facts obtaining in the case at bar do not
warrant us to take the exceptional step of setting aside the finding of probable cause made
by the respondent appellate court and the trial court. Their finding is supported by
Criminal Procedure - Rule 112| Page 80 of 80

substantial evidence and the issuance of warrants of arrest against the petitioners to hold
them for trial for estafa does not constitute misuse of prosecutorial powers. To be sure,
petitioners will be exposed to the inconvenience of facing numerous similar criminal suits
but so long as the inconvenience is no more than what is necessary to dispense justice, they
have no cause to gripe for justice equally belongs to the private respondents.
V
It is also respectfully submitted that the Department of Justice did not act with grave abuse
of discretion when it refused to review the City Prosecutor's Joint Resolution and dismissed
petitioners' appeal. The applicable case law is Crespo vs. Mogul, et al.,
6
where we held:
xxx xxx xxx
The rule therefore in this jurisdiction is that once a complaint or information is filed in
Court any disposition of the case as its dismissal or the conviction or acquittal of the
accused rests in the sound discretion of the Court. Although the fiscal retains the direction
and control of the prosecution of criminal cases even while the case is already in Court he
cannot impose his opinion on the trial court. The Court is the best and sole judge on what
to do with the case before it. The determination of the case is within its exclusive
jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be
addressed to the Court who has the option to grant or deny the same. It does not matter if
this is done before or after the arraignment of the accused or that the motion was filed after
a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records
of the investigation.
In order therefore to avoid such a situation whereby the opinion of the Secretary of Justice
who reviewed the action of the fiscal may be disregarded by the trial court, the Secretary of
Justice should, as far as practicable, refrain from entertaining a petition for review or
appeal from the action of the fiscal, when the complaint or information has already been
filed in Court. The matter should be left entirely for the determination of the Court.
I concede that respondent judge Asuncion misread Crespo when he denied the
prosecution's Motion to Defer Further Proceedings on the ground that ". . . to follow
whatever opinion the Secretary of Justice may have on the matter would undermine the
independence and integrity of this Court." I agree that Crespo did not prohibit the
Department of Justice from reviewing resolutions of its prosecutors even if the proper
informations have already been filed with the courts. Crespo merely counselled the
Secretary of Justice to refrain from exercising said power of review "as far as practicable"
taking into account the broader interest for a more orderly administration of justice. In
exceptional instances where it is practicable for the Secretary of Justice to exercise the
power of review, courts should not be heard to complain that their independence will be
undermined. The dispensation of justice is not the monopoly of courts. It is as much the
responsibility of the two other great branches of our government, the Executive and the
Legislative.
Nevertheless, the refusal of the respondent Judge Asuncion to defer proceedings based on a
misperception of Crespo is now of deminimis importance. The initial decision of the DOJ
to review petitioners' case was due to its impression that the finding of probable cause
made by the prosecutors of Quezon City was, at that time, open to honest contentions. This
doubt, however, dissolved when no less than the respondent Court of Appeals sustained the
finding of probable cause made by the respondent judge after an evaluation of the Joint
Resolution of the Quezon City prosecutors. With the imprimatur of the respondent Court of
Appeals on the existence of probable cause and following Crespo, it is no longer
"practicable" for the DOJ to further review petitioners' case. Contrary to the impression of
the majority, the appellate court affirmed the ruling of respondent judge on probable cause
only after a long and deliberate study of the issue. The issue of probable cause was the
subject of oral arguments and extensive pleadings before the appellate court which even
directed the elevation of the original records of Criminal Case No. Q-93-43198. The
probability that the DOJ will reach a finding different from the appellate court is nil
considering that it will be reviewing the same set of evidence.
Finally, petitioners justify the need for DOJ to review their case in view of the latter's
alleged contradictory rulings on cases brought by different parties involving the same
controversy. The DOJ has denied the charge that it has issued contradictory rulings. But if
these contradictory rulings were truly rendered by DOJ, there is more reason for DOJ to let
the issue be resolved by the courts. As ultimate arbiters of rights in conflict, only the courts
can write finis to the controversy between petitioners and private respondents.
I vote to dismiss the petition.
Regalado, Romero, Melo and Mendoza, JJ., concur.