SECOND DIVISION

G.R. No. 120163 March 10, 199

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
DATUKON BANSIL y ALOG, accused-appellant.

QUISUMBING, J.:

This is an appeal from the decision 1 of the Regional Trial Court of Manila, Branch
43, in Criminal Case No. 93-128854 finding accused-appellant Datukon Bansil y
Alog guilty beyond reasonable doubt of the crime of illegal possession of firearms
under Presidential Decree No. 1866 2 for having in his possession a .45 cal. pistol
and six (6) live ammunitions without the required license, and sentencing him to
suffer the penalty of reclusion perpetua.

Appellant herein is a twenty-eight (28) year-old construction worker residing in

Quiapo, Manila, who was arrested by a team of policemen allegedly led by Major
Jaime Ortega of Substation 3 of the Western Police District (WPD), upon an
informer's tip that appellant was one of the suspects in the killing of three persons
some weeks before in Quiapo, Manila.

The facts as presented by the prosecution show that on October 28, 1993 at around
5:00 o'clock in the afternoon, the desk officer of Sub-station 3 of the Western
Police District (WPD) received information from an informant (whose identity was
not divulged) that a suspect in a killing in Quiapo some weeks before was in the
vicinity of the Muslim Mosque in Quiapo, Manila. 3 Responding to the
information, Sub-station Commander Jaime Ortega, P03 Liquido Delgado, Mario
Montes and SPO4 Oscar V. Clemente proceeded to the Muslim area where they
saw several persons conversing at the corner of Elizondo St.. One of said persons
had a suspicious bulge in his stomach, and when frisked, a .45 cal. pistol with an
extended magazine and six (6) live bullets was recovered from the center front of
his waist line. Major Ortega took the gun and brought appellant to the sub-
station4 SPO4 Redolfin Coloma notified SPO3 Jaime D. Mendoza of the WPD
Homicide Division to take custody of the appellant. That same day, SPO3
Mendoza received the person of the accused and the subject firearm for
safekeeping.

The defense contradicts the prosecution's version. According to the defense, prior
to his arrest appellant was given by his cousin, Mike Mancupao, the patrolman
commander of precinct no. 3, to Major Ortega, one of the arresting officers, as a
"helper." 5 On three occasions, Major Ortega asked appellant to collect money
from a certain Hadjie baddie allegedly arising from certain drug deals. On the
fourth occasion, appellant was unable to locate Hadji Baddie at his residence near
the Pasig River. 6 His further efforts to locate Hadji Baddie proved futile, hence,
appellant stopped reporting to Major Ortega. On October 28, 1993, at around 3:00
o'clock in the afternoon, while appellant and his companions, Hidrain Soliman and
Teecaria, were having halo-halo at the Hadji Asia Restaurant at Elizondo St. in
Quiapo, Manila, Major Ortega came up to him, companionably placed his hand on
his shoulder and invited him to talk outside. 7 The two then proceeded in the
direction of the Barter Trade Area. This exchange was witnessed by one of the
waitresses in said restaurant, Serabanon Angcob, who also testified in court that
she knows both appellant and Major Ortega since the two used to have halo-halo at
the restaurant where she worked.

Appellant claims that Major Ortega asked him about the money from Hadji Baddie
and appellant explained that he could no longer find him, which made Major
Ortega angry. Major Ortega then brought appellant to the precinct where he was
locked up. 8 Thereafter, according to appellant, several persons showed him a gun;
they insisted it belonged to him. He was told that to prevent further harm on
himself, he should sign a document admitting that he committed a crime. When
appellant adamantly refused to do so, some unidentified persons mauled him
before sending him back to jail. 9

Appellant insists that he never met the prosecution witness SPO4 Clemente prior to
the court hearing, and that the only person who arrested him was Major
Ortega. 10 He categorically denies ever having in his possession a gun at the time
he was arrested by Major Ortega.

In an Information 11 dated November 4, 1993, Assistant City Prosecutor Tomas R.

Romaquin charged the accused-appellant with the crime of violation of
Presidential Decree No. 1866, allegedly committed as follows:

That on or about October 28, 1993, in the City of Manila, Philippines,

the said accused, did then and there wilfully and unlawfully have in
 his possession and under his control and custody a .45 Colt pistol with
Serial No. FG-788041 with six (6) live ammunitions which was
tucked in his waist, without first securing the necessary license or
permit therefor from the proper authorities.

CONTRARY TO LAW.

Upon arraignment on December 22, 1993, appellant, assisted by counsel de oficio,

Atty. Bonifacio M. Macabaya, 12 entered a plea of "not guilty".

During trial, the prosecution presented four (4) witnesses, namely: (1) SPO3
Romeo T. de Guzman, a representative from the Firearms and Explosives Unit of
Camp Crame, whose testimony was dispensed with when the defense stipulated
with the prosecution that the certification (Exh. "A") dated January 21, 1994 (that
the accused is not a licensed/registered firearms holder of any kind and caliber)
was duly issued and signed by the proper authorities; 13 (2) SPO4 Oscar V.
Clemente, one of the apprehending officers; (3) SPO3 Jaime D. Mendoza, the
investigating officer; and (4) Police Chief Inspector Manolo G. Martinez, who
testified that his participation in the case is limited to the fact that the firearm
allegedly confiscated from the appellant was turned over to his division for
safekeeping purposes only. 14

On the other hand, the defense presented two witnesses: (1) appellant Datukon
Bansil himself, and (2) Serabanon Angcob, the waitress at the Hadji Asia
Restaurant.

After trial, the lower court rendered a decision 15 finding appellant guilty as
charged, the dispositive portion of which reads:

WHEREFORE, premises considered, the accused is hereby found

guilty beyond reasonable doubt of Violation of P.D. 1866 as charged
and therefore, the accused, Datukon Bansil y Alog is hereby sentenced
to suffer the penalty of reclusion perpetua.

SO ORDERED.

Hence, the present appeal. Appellant seeks reversal of his conviction on the
following grounds:

I
THE COURT A QUO ERRED IN NOT HOLDING THAT
PRESIDENTIAL DECREE NO. 1866 VIOLATES SECTION 19 OF
ARTICLE III OF THE 1987 CONSTITUTION OF THE REPUBLIC
OF THE PHILIPPINES.

II

THE COURT A QUO ERRED IN HOLDING THAT THE

BULGING WAIST LINE OF APPELLANT DATUKON BANSIL
MADE THE SEARCH AND ARREST LEGAL.

III

THE COURT A QUO ERRED IN NOT HOLDING THAT THE

ARREST OF APPELLANT DATUKON BANSIL WAS
UNLAWFUL.

IV

THE COURT A QUO ERRED IN FINDING APPELLANT

DATUKON BANSIL, GUILTY BEYOND REASONABLE DOUBT
FOR VIOLATION OF PRESIDENTIAL DECREE NO. 1866 AND
IN THUS NOT ACQUITTING APPELLANT DATUKON BANSIL.

THE COURT A QUO ERRED IN NOT HOLDING THAT MAJOR

JAIME ORTEGA ALONE ARRESTED APPELLANT DATUKON
BANSIL.

VI

THE COURT A QUO ERRED IN NOT HOLDING THAT JAIME

ORTEGA FELT ILL WILL ON APPELLANT DATUKON BANSIL.

VII

THE COURT A QUO ERRED IN NOT HOLDING THAT THE

PROSECUTION FAILED TO ESTABLISH BEYOND
REASONABLE DOUBT THAT THE GUN IDENTIFIED BY
 SENIOR POLICE INSPECTOR MARTINEZ WAS CONFISCATED
FROM APPELLANT DATUKON BANSIL.

Concisely put, the issues are first, whether or not P.D. No. 1866 is unconstitutional
considering that the penalty imposed therein is allegedly disproportionate to the
offense committed in violation of the constitutional proscription against "excessive
fines" and "cruel, degrading and inhuman punishment" under Article III, Section
19 of the 1987 Constitution. Second, whether or not the trial court correctly gave
credence to the testimony of the prosecution witnesses over the denial of the
appellant. Third, whether or not appellant was lawfully arrested.

The question of proportionality of penalty to the crime charged has been rendered
moot and academic with the passage of Republic Act No. 8294, 16 which lowered
the penalty for the crime of illegal possession of firearms from the previous
"reclusion temporal in its maximum period to reclusion perpetua" under P.D. No.
1866 to "prision mayor in its minimum period and a fine of P30,000.00" in cases
involving high powered firearms under R.A.. No. 8294. We also deem it not
necessary to delve into the constitutionality of P.D. No. 1866 considering that it
has long been settled by this Court in no less than two en banc decisions
— Misolas v. Panga, 181 SCRA 648 (1990), and Baylosis v. Chavez, 202 SCRA
405 (1991). 17

The decisive issue then is whether or not the trial court erred in relying on the
testimony of the prosecution witnesses, in particular the testimony of SPO4 Oscar
V. Clemente, one of the apprehending officers, in convicting appellant. After a
thorough scrutiny of SPO4 Clemente's testimony, we find the same insufficient to
prove beyond reasonable doubt the culpability of the appellant for the crime
charged.

Generally, the issue of credibility of witnesses is best ascertained by the trial court
which had the opportunity to observe the witnesses directly and to test their
credibility by their demeanor on the stand.18 Hence, the general rule is that factual
findings of the trial court are accorded respect and are not disturbed on
appeal. 19 However, a review of the records of the case compels us to take
exception to the aforesaid rule. We believe that the trial court erred in adopting the
prosecution's story "hook, line and sinker" albeit riddled with patent
inconsistencies and improbabilities on material points.

We find the testimony of SPO4 Clemente full of inconsistencies on material points,

such as how the arresting team was able to single out appellant as the suspect, and
among them who actually recovered the firearm from appellant. Initially, SPO4
Clemente testified that they were able to identify appellant because the informant
told the desk officer the attire of the accused, yet upon further questioning, he
could not even remember the supposed attire of the appellant used in identifying
the latter at the time of arrest. 20 Further, on direct examination, SPO4 Clemente
initially testified that he was the one who recovered the subject firearm from the
appellant; 21 however, on cross-examination, he testified that it was actually
another operative whose name he can no longer recall who recovered the firearm
from the appellant. 22 Considering that there were only four members of the
arresting team, including himself, his memory lapses renders his credibility
suspect.

While a police officer is not expected to remember every single detail regarding
the arrest, he is supposed to remember the important details relating to the
commission of the crime, most especially when such incident occurred in his
presence and within his active involvement. Further, no seizure receipt was issued
by the arresting team for the gun, if indeed it was taken from the accused. Receipts
for seized items are mandatory on the part of apprehending and seizing police
officers.23

We are aware of the time-honored rule that "credence should be given to the
narration of an incident by prosecution witnesses who are police officers and
presumed to have performed their duties in a regular manner, in the absence of
evidence to the contrary." 24 However the instant case calls for the application of
the exception rather than the rule. The testimony of the prosecution witness who
was a member of the arresting team is replete with inconsistencies and
contradictions that reliance thereon by the trial court seems to be misplaced.

While the trial court found that appellant was lawfully arrested without a warrant
since he was actually committing a crime in the presence of a peace officer under
Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure based on the
informant's tip and the "bulging waistline" of the appellant, we find that there was
no probable cause for the arrest of the appellant. The arresting team was only
armed with the knowledge of the suspect's "attire" which the prosecution witness
admitted during trial he cannot even remember. The team did not have a physical
description of the suspect nor his name. They were not even given a specific place
within which to target their search of the suspect, only a vicinity of the Muslim
Area in Quiapo, near the Muslim Mosque. Yet the arresting team directly zeroed in
on the accused and his companions who were only eating halo-halo at a small
restaurant, surely not a crime in itself. While SPO4 Clemente claims that accused
had a "bulging waistline", this alone, in the light of the availing circumstances, is
insufficient to constitute probable cause for the arrest of the accused.

Moreover, in crimes involving illegal possession of firearm, the prosecution has

the burden of proving the elements thereof, viz: (a) the existence of the subject
firearm and (b) the fact that the accused who owned or possessed it does not have
the license or permit to possess the same. 25 The essence of the crime of illegal
possession is the possession, whether actual or constructive, of the subject firearm,
without which there can be no conviction for illegal possession. After possession is
established by the prosecution, it would only be a matter of course to determine
whether the accused has a license to possess the firearm. In the instant case, the
link of the accused to the subject firearm is tenuous at best. The prosecution failed
to prove beyond reasonable doubt that the gun which was allegedly recovered from
the accused is the same gun which was examined by its corroborating witnesses,
Jaime Mendoza and Manolo Martinez.

Faced with outright denial of the accused of the possession of the gun, the
prosecution had all the opportunity to cross-examine the accused and his witness in
order to ferret out the truth and expose the falsity of their allegations. This the
public prosecution failed to do. On the other hand, we find the testimony of the
accused and his witness delivered in a spontaneous, natural and consistent manner.
No ulterior motive was ascribed to witness Serabanon Angcob to testify in favor of
accused.

In a criminal case, the accused is entitled to an acquittal, unless his guilt is shown
beyond doubt. Proof beyond reasonable doubt does not mean such a degree of
proof as, excluding possibility of error, produces absolute certainty. Moral
certainty only is required, or that degree of proof which produces conviction in an
unprejudiced mind. 26 On the whole, the meager evidence for the prosecution casts
serious doubts as to the guilt of accused. It does not pass the test of moral certainty
and is insufficient to rebut the constitutional presumption of innocence.

WHEREFORE, the appealed decision is REVERSED and SET ASIDE, and

appellant DATUKON BANSIL is hereby ACQUITTED for insufficiency of
evidence to prove his guilt beyond reasonable doubt. Appellant's immediate release
is ordered unless he is detained for some other lawful cause.

SO ORDERED.

Bellosillo, Puno, Mendoza and Buena, JJ., concur.