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REGALADO, J., concurring and dissenting opinion:

I concur in the majority opinion only insofar as it holds accused-appellant Daniel Quijada y Circulado guilty of the crime of murder with the use of an illegally possessed firearm and punishes him therefor. I confess, however, that I cannot in conscience reconcile myself with the unfortunate doctrine first announced in People vs. Tac-an, ¹ and now reiterated by the majority, that said appellant should be twice penalized for two supposedly distinct offenses involving (1) the murder of the victim with an illegally possessed firearm, under Presidential Decree No. 1866 and (2) the same murder of that same victim, this time under Article 248 of the Revised Penal Code.

I have heretofore rejected this very same dual verdicts of conviction inmy concurring opinion in People vs. Barros, ² which found favor with all my brethren in the Second Division, including Chief Justice Andres R. Narvasa acting as the ponente of the decision in that case and in his capacity as the Chairman of that Division. Indeed, I feel quite strongly that through the play on words that illegal possession of firearm used in a killing is punishable under Presidential Decree No. 1866, while the same killing with the same illegally possessed firearm is separately punished under Article 248 of the Revised Penal Code, we have been beguiled by the semantical tyranny of shifting emphases.

I endeavored to analyze what I considered the error of that approach and thereby expose the speciously camouflaged theory espoused in Tac-an which I believe, and still do, constitutes an affront on doctrinal concepts of penal law and assails even the ordinary notions of common sense. To avoid excursive reading, I quote my humble explanation in Barros somewhat at length:

Under the dispositions heretofore made by the Court involving the crimes of homicide or murder through the use of an illegally possessed firearm, and the same is true with the case at bar, the following queries may be posed:

1. Should the crimes of homicide or murder, which are the end results, be punished separately from and in addition to the liability for illegal possession of the firearm as the instrument or the means employed?

2. On the other hand, should not theprincipal sole offense be the aggravated form of illegal possession of a firearm under the second paragraph of Section 1 of Presidential Decree No. 1866, with the homicide or murder being absorbed therein as an integral element of the crime in its aggravated form?

3. If either homicide or murder and illegal possession of firearm are so charged in one and the same information, should they be considered and punished as a single offense of homicide or murder with the use of an unlicensed firearm, or as a case of aggravated illegal possession of firearm resulting in homicide or murder, with the death penalty to be imposed in either case?

4. If homicide or murder is charged in a separate information while aggravated illegal possession of firearm is made the subject ofa separate indictment filed simultaneously with or prior or subsequent to the former, but with the respective informations on the killing and the illegal possession mutually alleging facts regarding the other offense as an attendant circumstance, should the accused be held liable for two distinct crimes regardless of whether the cases are jointly tried by the same court or separately by the two courts where- the informations were independently filed?

On the first question, it is true that from the theoretical concept of the requisite mens rea, the killing as the result of the criminal design arose from a specific criminal intent, that is, the animus interficendi or intent to kill. The illegal possession of the firearm requires a discrete and specific intent to possess the weapon, which is the animus possidendi, coupled with the physical possession thereof.

It would, therefore, appear at first blush that the two offenses having arisen from different criminal intents, this would be, under the philosophical bases for concurso de delitos, a case of material or real plurality under which different crimes have been committed and for each of which a separate criminal liability attaches. The flaw in this approach, however, is that although two crimes have been committed, they are not altogether separate or disconnected from each other both in law and in fact. The illegally possessed firearm having been the weapon used in the killing, the former was at least the necessary, although not an indispensable, means to commit the other.

The situation thus borders closer to the concept of complex crime proper, technically known as a delito complejo, rather than to the postulate of two separate crimes. It is true that former doctrines were to the effect that there can be no complex crime where one of the component offenses is punished by a special law. The rationale therefore was that in a complex crime, Article 48 of the Code prescribes that the penalty shall be for the graver offense to be applied in its maximum period. Since, at that time, the penalties for crimes provided in special laws were not divided into periods, it would be impossible to apply Article 48.

That ratiocination no longer applies now, specifically with respect to the case at bar, since the penalties in Presidential Decree No. 1866 were all taken from the scale of penalties in the Code. The only possible difficulty in this novatory approach would be on the first kind of complex crime, that is, the delito compuesto since it exists "(w)hen a single act constitutes two or more grave or less grave felonies." The use of that particular term for the delicts committed bars the application of that form of complex crime to offenses under Presidential Decree No. 1866, since "felonies" are offenses provided and defined in the Code.

That objection would not, however, apply to a delito complejo since it is sufficient therefor that "an offense is a necessary means for committing the other." By these considerations, however, the writer does not mean to imply that a killing through the use of an illegally-possessed firearm is a delito complejo under Article 48 of the Code. As was carefully stated, such an offense merely borders closer to or approximates the concept of a delito complejo, but it thereby emphasizes the thesis that the offenses should not be considered as separate crimes to be individually punished under the principle of material plurality.

This premise accordingly brings up the second query as to whether or not the crime should properly be the aggravated illegal possession of an unlicensed firearm through the use of which a homicide or murder is committed. It is submitted that an accused so situated should be liable only for the graver offense of aggravated illegal possession of the firearm punished by death under the second paragraph of Section 1, Presidential Decree No. 1866, and it is on this point that the writer dissents from the holding which would impose a separate penalty for the homicide in addition to that for the illegal possession of the firearm used to commit the former.

If the possession of the unlicensed firearm is the only offense imputable to the accused, the Court has correctly held that to be the simple possession punished with reclusion temporal in its maximum period to reclusion perpetua in the first paragraph of Section 1. Where, complementarily, the unlicensed firearm is used to commit homicide or murder, then either of these felonies will convert the erstwhile simple illegal possession into the graver offense of aggravated illegal possession. In other words, the homicide or murder constitutes the essential element for integrating into existence the capital offense of the aggravated form of illegal possession of a firearm. Legally, therefore, it would be illogical and unjustifiable to use the very same offenses of homicide or murder as integral elements of and to create the said capital offense, and then treat the former all over again as independent offenses to be separately punished further, with penalties immediately following the death penalty to boot.

The situation contemplated in the second query is, from the punitive standpoint, virtually of the nature of the so-called "special complex crimes," which should more appropriately be called composite crimes, punished in Article 294, Article 297 and Article 335. They are neither of the same legal basis as nor subject to the rules on complex crimes in Article 48, since they do not consist of a single act giving rise to two or more grave or less grave felonies nor do they involve an offense being a necessary means to commit another. However, just like the regular complex crimes and the present case of aggravated illegal possession of firearms, only a single penalty is imposed for each of such composite crimes although composed of two or more offenses.

On the other hand, even if two felonies would otherwise have been covered by the conceptual definition of a complex crime under Article 48, but the Code imposes a single definite penalty therefor, it cannot also be punished as a complex crime, much less as separate offenses, but with only the single penalty prescribed by law. Thus, even where a single act results in two less grave felonies of serious physical injuries and serious slander by deed, the offense will not be punished as a delito compuesto under Article 48 but as less serious physical injuries with ignominy under the second paragraph of Article 265. (People v. Lasala, L-12141, January 30, 1962, 4 SCRA 61.) The serious slander by deed is integrated into and produces a graver offense, and the former is no longer separately punished.

What is, therefore, sought to be stressed by such alternative illustration, as well as the discussion on complex and composite crimes, is that when an offense becomes a component of another, the resultant crime being correspondingly punished as thus aggravated by the integration of the other, the former is not to be further separately punished as the majority would want to do with the homicide involved in the case at bar.

With the foregoing answers to the second question, the third inquiry is more of a question of classification for purpose of the other provisions of the Code. The theory in Tac-an that the principal offense is the aggravated form of illegal possession of firearm and the killing shall merely be included in the particulars or, better still, as an element of the principal offense, may be conceded. After all, the plurality of crimes here is actually sourced from the very provisions of Presidential Decree No. 1866 which sought to "consolidate, codify and integrate" the various laws and presidential decrees to harmonize their provisions" which "must be updated and revised in order to more effectively deter violators" of said laws.

This would be akin to the legislative intendment underlying the provisions of the Anti-Carnapping Act of 1972 (R.A. No. 6539, August 26, 1972), wherein the principal crime to be charged is still carnapping, although the penalty therefore is increased when the owner, driver or occupant of the carnapped vehicle is killed. The same situation, with escalating punitive provisions when attended by a killing, are found in the Anti-Piracy and Anti-Highway Robbery Law of 1974 (P.D. No. 532, August 8, 1974) and the Anti-Cattle Rustling Law of 1974 (P.D. No. 533, August 8, 1974), wherein the principal crimes still are piracy, highway robbery and cattle rustling. Also, in the matter of destructive arson (Article 320, Revised Penal Code, as last amended by R.A. No. 7659), the principal offense remains as arson although the same becomes a capital offense when inter alia, death results as a consequence of the commission of any of the acts punished under said article of the Code.

In the present case, the academic value of specifying whether it is a case of illegal possession of firearm resulting in homicide or murder, or, conversely, homicide or murder through the illegal possession and use of an unlicensed firearm, would lie in the possible application of the provision on recidivism. Essentially, it would be in the theoretical realm since, taken either way, the penalty for aggravated illegal possession of a firearm is the single indivisible penalty of death, in which case the provision on recidivism would not apply. If, however, the illegal possession is not established but either homicide or murder is proved, then the matter of recidivism may have some significance in the sense that, for purposes thereof, the accused was convicted of a crime against persons and he becomes a recidivist upon conviction, or another crime under the same title of the Code.

Lastly, on the matter of the offense or offenses to be considered and the penalty to be imposed when the unlawful killing and the illegal possession are charged in separate informations, from what has been said the appropriate course of action would be to consolidate the cases and render a joint decision thereon, imposing a single penalty for aggravated illegal possession of firearm if such possession and the unlawful taking of life shall have been proved, or for only the proven offense which may be either simple illegal possession, homicide or murder per se. The same procedural rule and substantive disposition should be adopted if one information for each offense was drawn up and these informations were individually assigned to different courts or branches of the same court.

Indeed, the practice of charging the offense of illegal possession separately from the homicide or murder could be susceptible of abuse since it entails undue concentration of prosecutorial powers and discretion. Prefatorily, the fact that the killing was committed with a firearm will necessarily be known to the police or prosecutorial agencies, the only probable problem being the determination and obtention of evidence to show that the firearm is unlicensed.

Now, if a separate information for homicide or murder is filed without alleging therein that the same was committed by means of an unlicensed firearm, the case would not fall under Presidential Decree No. 1866. Even if the use of a firearm is alleged therein, but without alleging the lack of a license therefor as where that fact has not yet been verified, the mere use of a firearm by itself, even if proved in that case, would not affect the accused either since it is not an aggravating or qualifying circumstance.

Conversely, if the information is only for illegal possession, with the prosecution intending to file thereafter the charge for homicide or murder but the same isinexplicably delayed or is not consolidated with the information for illegal possession, then any conviction that may result from the former would only be for simple illegal possession. If, on the other hand, the separate and subsequent prosecution for homicide or murder prospers, the objective of Presidential Decree No. 1866 cannot be achieved since the penalty imposable in that second prosecution will only be for the unlawful killing and further subject to such modifying circumstances as may be proved.

In any event, the foregoing contingencies would run counter to the proposition that the real offense committed by the accused, and for which sole offense he should be punished, is the aggravated form of illegal possession of a firearm. Further, it is the writer's position that the possible problems projected herein may be minimized or obviated if both offenses involved are charged in only one information or that the trial thereof, if separately charged, be invariably consolidated for joint decision. Conjointly, this is the course necessarily indicated since only a single composite crime is actually involved and it is palpable error to deal therewith and dispose thereof by segregated parts in piecemeal fashion. (Italics supplied for emphases, with some footnotes in the original opinion being incorporated in the text by way of documentation.)

With appropriate respect for the opinions en contra, I take this opportunity not only to elaborate upon and further clarify my aforequoted views in Barros but, hopefully, to also cleanse the expanding framework of our criminal law from ideas which have not grown apace with conceptual changes over time.

My position in Barros is challenged as being a novel theory which sets aside the doctrine followed insome cases previously decided by the Court and the rationale on which they were based. That isunderstandable, since the inertia of time has always been the obstacle to the virtues of change. That mind-set appears to predominate in the action of the majority in the instant cases.

However, it is precisely for that reason that we are now reviewing those doctrines, as we have done in a number of cases before, instead of taking a stance of infallibility. And, if it does turn out that we are mistaken, then in law and in conscience we must act accordingly, for, as has been said, the beauty of a mistake is that it can be corrected; the tragedy is that it can be perpetuated.

I

1. It is obvious that our present problem had its origin in the aforecited case of People vs. Tac-an where the controversial theory was first laid down that since one offense (illegal possession of an unlicensed firearm) is penalized under a special statute while the other (murder) is punished under the Revised Penal Code, they can be validly prosecuted and punished separately. The trial court imposed the death penalty in each of said cases, the offenses having been committed in 1984 with the decision rendered therein in 1986, but this Court modified those sentences to two penalties of reclusion perpetua because of the supervenience of the 1987 Constitution. Significantly, it was explicitly accepted therein that "(a)lthough the circumstance that human life was destroyed with the use of an unlicensed firearm isnot an aggravating circumstance x x x it may still be taken into account to increase the penalty to death (reclusion perpetua under the 1987 Constitution) because of the explicit provision of P.D. No. 1866."

2. That mother case of Tac-an gave birth to a progeny of identically-based decisions, the first being People vs. Tioson ³ where, in addition to the rationale that the offenses were punished under separate laws, the theory of separate penalties was further sought to be justified thus: "It does not, however, follow that the homicide or murder is absorbed in the offense; otherwise an anomalous absurdity results whereby a more serious crime defined and penalized in the Revised Penal Code is absorbed by a statutory offense, which is just a malum prohibitum."

3. Next came People vs. Caling ⁴ which is notable for lucidly laying down the distinction between what it categorized for easy reference as the simple and aggravated forms of illegal possession of unlicensed firearms, although it adhered to the theory of separate offenses where a killing, is involved but hewing only to the reason that this is because these offenses are punished by separate laws, as theorized in Tac-an. In Caling, however, the accused was acquitted and no application of penalties was actually made.

4. People vs. Jumamoy ⁵ sustained separate convictions for murder and the aggravated form of illegal possession of an unlicensed firearm on the same rationale as Tioson, with an added advertence to People vs. Doriquez ⁶ that such separate convictions will theoretically not run afoul of the prohibition against double jeopardy.

5. This was followed by People vs. Deunida ⁷ where, on two charges for murder and aggravated illegal possession of firearms, the accused was convicted only of the latter offense since the prosecution withdrew the charge for murder. The Court, in this case, considered the withdrawal of the indictment for murder as erroneous on the bases of the doctrines in Tac-an, Caling and Tioson.

6. In People vs. Somooc, ⁸ the accused who committed homicide with the use of an illegally possessed unlicensed firearm was charged with and convicted of the aggravated form of illegal possession and punished by reclusion perpetua since the offense was committed in 1988. The Court called attention to the doctrine and ratiocination inCaling.

II

It will, therefore, be observed that "the settled ruling in the aforementioned cases" is actually a skein drawn from the same single thread originally introduced by Tac-an and stitched into the jurisprudential fabric with some permutative designs. It is not necessarily "unfortunate if we should suddenly depart therefrom" where the benefit of a second view and the grace of hindsight dictate such a course of action.

The Court will recall the series of cases, when the proscription against the imposition of the death penalty was still upon us, wherein we initially provided in our decisions different and inconsistent rules on the proper periods of the penalty for murder, at that time punishable by reclusion temporal in its maximum period to death. We eventually settled on reclusion perpetua as the medium period. ⁹ Of more recent memory was the spate of conflicting positions on the penalty for illegal possession and traffic in dangerous drugs, and the amendments brought about by Republic Act No. 7659, until we arrived at a solution in People vs. Simon. ¹⁰ Nobody was heard to complain that we were running afoul of the doctrine of stare decisis, as now appears to be the stance of the majority.

Indeed, if hard cases make bad law, bad law also makes hard cases, whether what is involved isstatutory or case law. Of course, in discharging our duty of judicial interpretation, there may be not only merit but also facility, if not the expediency of the slothful path of least resistance, in just adopting the rule of uniformity on the bases of past decision. But, equally as commendable as the doctrine of stare decisis itself, is the well-known and ancient wisdom in the reminder that such doctrine does not mean blind adherence to precedents.

III

Obviously, because of the reasoning in Tac-an, the majority opinion emphasizes that in imposing a single penalty of reclusion perpetua for the qualified violation of Presidential Decree No. 1866 and treating murder merely as an element of the statutory offense, an incongruous situation results wherein a more serious crime under the Revised Penal Code, which is malum in se, is absorbed by a lesser offense under a special law which is only malum prohibitum. Hence, it was urged during the deliberations that we should not adopt a novel doctrine which rests on a shaky foundation.

1. The basic premise of this argument is definitely off-tangent. The penalty for the aggravated illegal possession of unlicensed firearm, in the terminology of Caling, is the single indivisible penalty of death which would be imposable regardless of the generic modifying circumstances ¹¹ or of whether the killing constitutes murder or homicide. The penalty under Presidential Decree No. 1866 is, therefore, decidedly higher than that for murder, although it is now reclusion perpetua to death in Republic Act No. 7659, and, being thereby covered by Article 63 of the Code, will be reduced to reclusion perpetua in the absence of aggravating circumstances. Of course, it does not even have to be pointed out that the penalty for homicide is only reclusion temporal in its entire extent.

2. Even assuming arguendo that the penalty for the aforesaid taking of human life could be higher than the penalty for aggravated illegal possession which would absorb the former, that is not an unheard-of or earthshaking legal tableau. The objections to the doctrine of absorption here is reminiscent of what Judge Agustin P. Montesa reportedly stated, as quoted in People vs. Hernandez, et al., ¹² that: "The theory of absorption tenaciously adhered to by the defense to the effect that rebellion absorbs all these more serious offenses is preposterous, to say the least, considering that it is both physically and metaphysically impossible for a smaller unit or entity to absorb a bigger one."

Unfortunately, that astute observation was rejected by this Court, and advisedly so, since we are bound by legal precepts and not by physical or metaphysical laws. It is now an accepted dictum that the life of the law is not necessarily logic but experience. These considerations must have prompted the Court to also defend the doctrine of absorption intreason cases, ¹³ holding that more serious offenses committed for treasonous purposes are absorbed in the former, with the piquant observation in Labra that "(t)he factual complexity of the crime of treason does not endow it with the functional ability of worm multiplication or amoeba reproduction."

In the scheme of penalties under the Revised Penal Code, it is accepted that a lesser offense may absorb a graver offense. As already stated, the lesser offense of rebellion which is punished by prision mayor absorbs the graver offense of murder which is now punished by reclusion perpetua to death, and all other offenses even with higher penalties if committed in furtherance of rebellion. ¹⁴ On a lower level of comparison and closer to the case at bar, the lesser offense of forcible abduction which is punished by reclusion temporal ¹⁵ absorbs the graver offense of illegal detention of a woman which is punished by reclusion perpetua to death. ¹⁶ The lower offense of slavery involving the kidnapping of a person which is punished by prision mayor ¹⁷ absorbs the higher offense of kidnapping which is punished by reclusion perpetua to death. ¹⁸cräläwvirtualibräry

3. Neither should the fact that the aggravated form of illegal possession of an unlicensed firearm is a malum prohibitum punished by a special law inveigh against the doctrine of absorption we have adopted in Barros. In fact, as hereinbefore quoted, Tac-an recognized that the killing should be taken into account to increase the penalty to death because of the explicit provision of Presidential Decree No. 1866.

In People vs. Simon, ante, we traced the legal history of crimes punished under special laws, from the time they were divided by a seemingly impermeable membrane, because of their American origin and formulation, from felonies under the Revised Penal Code, which are of Spanish vintage. We explained how the legal development of adopting the scheme of penalties in the Revised Penal Code and applying them to those punished by special laws, markedly starting with subversion in Republic Act No. 1700, resulted in the consequent selective applicability of some provisions of the Code to special laws, absent an express or implicit prohibition against such vicarious application. There is decidedly no insuperable obstacle now to the application of the doctrine of absorption to offenses provided for or contemplated in Presidential Decree No. 1866.

4. Nor should we hold a "judicial prejudice" from the fact that the two forms of illegal possession of firearms in Presidential Decree No. 1866 are mala prohibita. On this score, I believe it is time to disabuse our minds of some superannuated concepts of the difference between mala in se and mala prohibita. I find in these cases a felicitous occasion to point out this misperception thereon since even now there are instances of incorrect assumptions creeping into some of our decisions that if the crime is punished by the Revised Penal Code, it is necessarily a malum in se and, if provided for by a special law, it isa malum prohibitum.

It was from hornbook lore that we absorbed the distinctions given by text writers, claiming that: (1) mala in se require criminal intent on the part of the offender; in mala prohibita, the mere commission of the prohibited act, regardless of intent, is sufficient; and (2) mala in se refer to felonies in the Revised Penal Code, while mala prohibita are offenses punished under special laws.

The first distinction is still substantially correct, but the second is not accurate. In fact, even in the Revised Penal Code there are felonies which are actually and essentially mala prohibita. To illustrate, in time of war, and regardless of his intent, a person who shall have correspondence with a hostile country or territory occupied by enemy troops shall be punished therefor. ¹⁹ An accountable public officer who voluntarily fails to issue the required receipt for any sum of money officially collected by him, regardless of his intent, is liable for illegal exaction. ²⁰ Unauthorized possession of picklocks or similar tools, regardless of the possessor's intent, is punishable as such illegal possession. ²¹ These are felonies under the Revised Penal Code but criminal intent is not required therein.

On the other hand, I need not mention anymore that there are now in our statutes so many offenses punished under special laws but wherein criminal intent is required as an element, and which offenses are accordingly mala in se although they are not felonies provided for in the Code.

IV

1. From the foregoing discussion, I regret that I cannot agree with the rationalization of the majority that two separate penalties must be imposed on the same accused because he is supposed to have committed two separate offenses of (1) illegal possession with murder, and (2) the same murder per se. The unusual justification is that in the first offense, the murder is not considered as a separate offense but only to increase the penalty for the illegal possession, and in the second offense, that same murder shall now be considered as a separate offense in itself. To make this theory palatable, the example is given that if the murder is committed with an unlicensed firearm, the death penalty is imposable, whereas if it is committed with a licensed firearm, the penalty shall only be reclusion perpetua.

This concern is evidently due to the fact that Republic Act No. 7659, which "reimposed" the death penalty for certain heinous crimes, does not include the offense that we have termed as aggravated form of illegal possession of firearms which is provided for in the second paragraph of Section 1, Presidential Decree No. 1866. It approximates, therefore, an obsessive desire to impose a higher penalty, even if thereby basic principles of criminal law and the clear provisions of Presidential Decree No. 1866 are to be disregarded. Should that intent to impose the present penalty for murder, be subserved by charging that crime separately and then prosecuting the offender again for using the firearm with which he committed the same murder? And, will that objective be achieved if the crime is homicide which has not been affected by Republic Act No. 7659 but will thereby also be subjected to the same double prosecution under the reasoning of the majority?

It has always been my position that the death penalty was not "abolished" by the 1987 Constitution, since I had some participation in formulating the provision involved. It merely provides that the same shall not "be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it," ²² that is, authorizes its imposition. Meanwhile, all laws which provided for the death penalty remained in force and were maintained in the statute books despite that constitutional provision since it did not by itself have the effect of amending or repealing them. Some of those laws were later expressly repealed or amended by the President in the exercise of her then legislative powers and, thereafter, some were repealed or modified by Congress, which even added other heinous crimes with capital penalties. However, other laws like Presidential Decree No. 1866, which were not thus repealed or amended, retain their present provisions and effects, except that the death penalty provided by them would in the meantime be reduced to reclusion perpetua. Parenthetically, why should the laws concerned be deemed amended or repealed if the death penalty provided for therein had already been "abolished" by the Constitution?

Republic Act No. 7659 did not "reimpose" the death penalty on murder. Article 248 of the Penal Code, which provided for the penalty of reclusion temporal in its maximum period to death for that crime, was amended by Republic Act No. 7659, merely to increase the penalty to reclusion perpetua to death, but it remained in full force even during the interim except for the fact that the penalty of death could not then be imposed. That is why the title of Republic Act No. 7659 is "An act to Impose the Death Penalty in Certain Heinous Crimes, Amending for that purpose, the Revised Penal Code, x x x." The same is true with respect to the aggravated form of illegal possession of firearms, except that the imposition of the death penalty thereunder is still proscribed.

2. Even if we were to indulge the majority in its thesis on the effects of Republic Act No. 7659 on Presidential Decree No. 1866, that is, that by the non-inclusion in the former of the aggravated form of illegal possession with murder the death penalty cannot be imposed for the murder, that fact does not warrant and cannot justify the recourse it has adopted as a judicial dictum. The second paragraph of the aforestated Section 1 expressly and unequivocally provides for such illegal possession and resultant killing as a single integrated offense which is punished as such. The majority not only created two offenses by dividing a single offense into two but, worse, it resorted to the unprecedented and invalid act of treating the original offense as a single integrated crime and then creating another offense by using a component crime which is also an element of the former.

It would already have been a clear case of judicial legislation if the illegal possession with murder punished with a single penalty had been divided into two separate offenses of illegal possession and murder with distinct penalties. It is consequently a compounded infringement of legislative powers for this Court to now, as it has done, treat that single offense as specifically described by the law and impose reclusion perpetua therefor (since the death penalty for that offense is still proscribed), but then proceed further by plucking out therefrom the crime of murder in order to be able to impose the death sentence. For indeed, on this score, it is beyond cavil that in the aggravated form of illegal possession, the consequential murder (or homicide) is an integrated element or integral component since without the accompanying death, the crime would merely be simple illegal possession of a firearm under the first paragraph of Section 1.

3. The fact that the aggravated form of illegal possession with murder was not included in Republic Act No. 7659 is a matter for Congress, and not for this Court, to remedy. A legislative terrain with gaps of omission in the statute isnot terra incognita to the courts, familiar as we are with instances thereof. The legislature may have committed such omissions in the law for reasons of its own or through unintended oversight but, unless judicial remedy is constitutionally permissible, and in the cases at bar it is not, the courts must await the legislative remedy of amendment or repeal of that law.

For illustration, we can just again refer to the impasse earlier discussed regarding the logically absurd penalties for kidnapping in Article 267, in relation to forcible abduction of a woman under Article 342 and kidnapping for slavery in Article 272, all of the Revised Penal Code. A reading of Republic Act No. 18 ²³ and Republic Act No.1084 ²⁴ readily reveals that it was the purpose of Congress by corresponding amendment of the other related provisions of the Code, to put all forms of kidnapping and serious illegal detention in Article 267. Yet, in the process, that objective was not fully subserved by the two amendatory laws since forcible abduction of a woman, which necessarily involves her kidnapping and detention, as well as kidnapping for the purpose of enslaving the victim, were overlooked and not included in the provisions of Article 267. ²⁵cräläwvirtualibräry

These instances are presented to project the discrepancies in what should be the appropriate penalties for the aforesaid offenses involved because of their omission by Congress in the logical taxonomy of crimes. Yet, the Judiciary stands bound by the aforementioned state of the law on the matter, and has not attempted to exercise the power reserved for legislative amendment to suit its perceptions on what the penalties should be for forcible abduction and slavery. Similarly, the disposition in the cases at bar is grounded on the omission or non-inclusion of murder through the use of an illegally possessed firearm in the heinous crimes subject of Republic Act No. 7659. But, instead of respecting the legislative formulation, the majority has contrarily decided to disregard the clear import of Presidential Decree No. 1866 and opted to impose two penalties for what it considers as two offenses through a bifurcated interpretation.

4. Following that treatment, is the Court now prepared to adopt the same procedure with regard to similar offenses punished under other decrees? For example, Presidential DecreeNo. 532, ²⁶ punishes highway robbery with murder or homicide with the mandatory penalty of death. Since this offense has not been included in Republic Act No. 7659 and the death penalty cannot be imposed, shall this Court also follow the same procedure of imposing the penalty of reclusion perpetua for the highway robbery with murder (or homicide) under Presidential Decree No. 532, and then further impose the death penalty for the same murder under Article 248 of the Revised Penal Code?

Again, Presidential Decree No. 533 ²⁷ imposes the penalty of reclusion perpetua to death if a person is killed as a result of cattle rustling. This offense has not been included in Republic Act No. 7659, hence the penalty can only be reclusion perpetua. By adopting the same rationale in the case at bar, shall the Court then impose the penalty of reclusion perpetua for cattle rustling pursuant to Presidential Decree No. 533 and then, if the killing constitutes murder attended only by an aggravating circumstance, should it then impose another penalty of death for the same murder under Article 248 of the Code?

Still further, Presidential Decree No. 534 ²⁸ provides that if illegal fishing with the use of explosives or noxious or poisonous substances results "in the loss of human life, then the penalty shall be imprisonment from 20 years to life, or death." This offense is not provided for in Republic Act No. 7659, hence the death penalty cannot be imposed; but the killing could conceivably constitute murder since the use of explosion or poison is a qualifying circumstance. The inevitable question that must again be posed, based on the theory adopted here by the majority, is whether or not the illegal fishing with murder shall be punished with life imprisonment at most under Presidential Decree No. 534, and then, if only an aggravating circumstance ispresent therein, the accused must also be given another penalty of death under Article 248 of the Code.

We can easily multiply what are clearly perceivable as the dangerous consequences of the solution contrived by the majority of creating two offenses and imposing two penalties. I have, however, chosen the foregoing illustrations involving acts punished under both a presidential decree and the Revised Penal Code, with murder as a common denominator, to make my analogies as close as possible to that involving Presidential Decree No. 1866 in these cases. In truth, the same problematic situation could be raised and created against any composite felony in the Code which is considered as a unitary offense and punished by a single penalty, if the majority's novel theory of duality of offenses with double penalties were to be applied thereto.

It is rather pointless to essay an unnecessary distinction between the phrase "as a result or on the occasion of" which refers to the killing committed in the course of violating Presidential Decrees Nos. 532, 533 and 534, and the killing "with the use" of an illegally possessed firearm contemplated in Presidential Decree No. 1866. Incidentally, the equivalent phrase used in the special complex crimes in Articles 294 and 297 of the Code, in referring to the deaths caused by the malefactor, is "by reason or on occasion of" the different stages of the robbery therein. But the common denominator and identity among all the aforesaid composite crimes, for purposes of the issue under consideration, is that there is a principal offense, which is separately punishable, and an unlawful killing with a direct nexus to or connection with that principal offense is also committed.

What is then the focus of the inquiry in the present case which applies with equal force to the aforestated composite crimes is merely whether or not, apart from and in addition to the penalty imposable on the offender if he violates any of the foregoing decrees or commits robbery in any of its stages and which penalty is increased precisely if accompanied by an unlawful killing, he should be further and separately punished for such homicidal or murderous taking of human life. The implacable question is whether or not two separate penalties should be imposed on him for killing the same victim since those decrees and the Code already provide a single but increased penalty for the crimes therein if accompanied by an unlawful killing and there by constituting a composite crime. Whether the death of the victim supervened as "a result or on the occasion," or "by reason or on occasion," or "with the use" of the firearm or poisonous substances availed of by the accused is immaterial even if liberally viewed in the context of the mens rea as proposed by the majority.

5. Prescinding from the substantive aspect and shifting to the procedural and constitutional view, I am also bothered by the impact of the majority opinion upon the rule on double jeopardy. I am referring, of course, to double jeopardy arising from prosecutions for the same offense under two or more laws as contemplated in the Rules of Court, ²⁹ and not to the special situation under the Constitution ³⁰ involving a prosecution for the same act punished under a law and an ordinance, as clarified in People vs. Relova, etc., et al. ³¹ In the first kind of double jeopardy for purposes of this discussion, what is determinative is the identity of the offense, hence the "same evidence" test applies, that is, that the facts alleged and proven in one charge would, based on the same evidence, suffice to support the second charge, and vice-versa. ³² Accordingly, the citation by the majority of People vs. Doriguez ³³ is of no moment, since it refers to a single act offending against two entirely distinct and unrelated provisions of law one of which requires proof of an additional fact or element, hence different and not identical offenses are involved.

In the cases now before us, it is difficult to assume that the evidence for the murder in the first charge of aggravated illegal possession of firearm with murder would be different from the evidence to be adduced in the subsequent charge for murder alone. In the second charge, the illegal possession is not in issue, except peripherally and inconsequentially since it is not an element or modifying circumstance in the second charge, hence the evidence therefor is immaterial. But, in both prosecutions, the evidence on murder is essential, in the first charge because without it the crime is only simple illegal possession, and, in the second charge, because murder is the very subject of the prosecution. Assuming that all the other requirements under Section 7, Rule 117 are present, can it be doubted that double jeopardy is necessarily present and can be validly raised to bar the second prosecution for murder? ³⁴cräläwvirtualibräry

In fact, we can extrapolate this constitutional and reglementary objection to the cases of the other composite crimes for which a single penalty is imposed, such as the complex, compound and so-called special complex crimes. Verily, I cannot conceive of how a person convicted of estafa through falsification under Article 48 can be validly prosecuted anew for the same offense of either estafa or falsification; or how the accused convicted of robbery with homicide under Article 294 can be legally charged again with either of the same component crimes of robbery or homicide; or how the convict who was found guilty of rape with homicide under Article 335 can be duly haled before the court again to face charges of either the same rape or homicide. Why, then, do we now sanction a second prosecution for murder in the cases at bar since the very same offense was an indispensable component for the other composite offense of illegal possession of firearm with murder? Why would the objection of non bis in idem as a bar to a second jeopardy lie in the preceding examples and not apply to the cases now before us?

The majority comes up with the so-called "additional element" test to take the issue out of the rule on double jeopardy, citing for that purpose Yap vs. Lutero ³⁵ and People vs. Relova, etc., et at ³⁶ These cases are not actually in point since they are primarily concerned with the question of double jeopardy where the same offense is punished by two statutes or different sections of the same statute, as contrasted with double jeopardy arising from the same act punished by a law and likewise by an ordinance, as has earlier been explained. The distinction is not germane here since there is no punitive ordinance involved in the case at bar. This proposition of the majority, however, bears discussion.

I do not gainsay the validity of the "additional element test," if properly understood and correctly applied. As I have written elsewhere, it is a cardinal rule that the protection against double jeopardy may be invoked only for identical offenses or where an offense necessarily includes or is necessarily included in the other offense. However, it has also long been held that a single act may offend against two or more entirely distinct and unrelated provisions of law, and if one provision requires proof of an additional fact or element which the other does not, an acquittal or conviction or a dismissal of the information under one does not bar prosecution under the other. ³⁷ That is because the two offenses continue to exist independently of each other, with their respective penalties remaining unaffected by the commission of or penaltyfor the other offense.

This is illustrated by the considerations in the present rule that Batas Pambansa Blg. 22, which punishes the mere issuance of bouncing checks, is not a bar to another prosecution for estafa through the use of bouncing checks under paragraph 2(d), Article 315 of the Revised Penal Code. ³⁸ The rationale therefor is that the issuance per se of a bouncing check is ipso jure punishable under Batas Pambansa Blg. 22, but to be punishable as estafa under the Code, the additional elements of deceit and damage are required. Also, while the former offense requires the drawer's knowledge of lack or insufficiency of funds in the drawee bank at the time the check is issued, the aforesaid provision on estafa does not so require. The penalty for the former is fixed by Section 1 of said law without regard to the damage caused or even without such damage, whereas the penalty for estafa through bouncing checks is determined by the damage to the offended party. ³⁹ Lastly, Section 5 of Batas Pambansa Blg. 22 provides that prosecution thereunder "shall be without prejudice to any liability for violation of any provision of the Revised Penal Code."

These features are absent in the integrated offense of murder or homicide with the use of an illegally possessed firearm. It is true that mere illegal possession has a specific lower penalty in Presidential Decree No. 1866, and murder or homicide have their own specific penalties in Articles 248 and 249 of the Code. However, the moment both erstwhile separate offenses juridically unite, we have what for expediency has been called by this Court an aggravated form of illegal possession of firearm punishable by the two highest penalties of reclusion perpetua to death. We cannot speak here, therefore, of the "additional element test" which presupposes and requires that the two offenses remain distinct from each other, with the discrete penalty for one being immune from that for the other. What, instead, transpired in Presidential Decree No. 1866 is a unification or merger in law of both offenses of illegal possession of firearm and murder or homicide, with each of them becoming a component offense in a new and different composite crime punished by another and gravely higher penalty.

V

1. The apprehension was also aired in our deliberations that the ruling in Barros may provide dishonest prosecutors with unfettered discretion to charge parties who commit illegal possession of firearms in its aggravated form not with the said offense but only with homicide or murder with one qualifying circumstance, and without any generic aggravating circumstance, so that by such strategy the accused would thereby get only the minimum period of the penalty.

As long as we live in a world of men and not of angels, there will always be that legitimate fear over the possible excesses of officialdom. There are, however, a plenitude of remedies provided by law for such a contingency, either criminal, civil or administrative innature. In fact, if that act of the public prosecutor amounts to a refusal to perform a specific duty imposed on him by law, his nonfeasance could even be controlled by an action for mandamus and he can be compelled to charge the proper offense in the information. ⁴⁰cräläwvirtualibräry

2. Again, drawing from the experience in Deunida where only the aggravated illegal possession charge proceeded while that for homicide was withdrawn, then on the submission that no private interest had to be protected therein, no private prosecutor could appear for the victim. Indeed, it was stated in said case: "No private interest is therefore involved. The civil liability arising from death may be the subject of a separate civil action or impliedly instituted with the criminal action for murder or homicide." The Court then ordered the deletion of the award of civil liability ex delicto.

It is my stand that even under such circumstances, the trial court may justifiedly assess and award the corresponding damages to the heirs of the victim. This is not one of the so-called "victimless crimes" where, by the very nature of the crime, no damages can possibly be sustained by a private party, such as espionage, violation of neutrality, flight to enemy country or crimes against popular representation. ⁴¹ Where the victim was killed under the circumstances contemplated in Presidential Decree No. 1866, I see no reason why the case should be excepted from the fundamental rule that every person criminally liable is civilly liable. ⁴² Thus, while the crime of rebellion is directed against the Government, yet in the rebellion cases decided by this Court, corresponding awards for civil damages were invariably granted so long as the offense which caused the damage was proved and the victim and the malefactor or the property involved were duly identified by satisfactory evidence.

3. The advertence to People vs. De Gracia, et al., ⁴³ the decision wherein was penned by this writer, overlooks or fails to mention that the same was decided under the aegis of the doctrines in the cases hereinbefore enumerated, specifically the Tioson case, to which we then had to defer as they constituted the prevailing rule, but which are now sought to be revisited in the instant case in light of Barros.

The statement in De Gracia that "(i)t was a legal malapropism for the lower court to interject the aforestated provision of the Revised Penal Code in this prosecution for a crime under a special law," referred to the action of the trial court in recommending executive clemency for the accused. Although there are some contrary views on the matter, the writer held that Article 5 of the Code does not apply to convictions under a special law where such application, as earlier stated, is expressly or impliedly prohibited. Said Article 5 expressly provides for the authority of the court to recommend executive clemency "when a strict enforcement of the provisions of this Code would result in the imposition of a clearly excessive penalty." Since, at that time the legal interplay between Presidential Decree No. 1866 and the penalties "borrowed" for it from the Revised Penal Code was still amorphous, this writer had to make those pronouncements in said case, but, precisely, the same are now being reexamined in the present cases.

I am aware that I have raised a number of what may appear as discomposing views but these should provoke a more thorough reexamination of the issues in these cases. On the other hand, I apprehend that the decision handed down herein may have opened a Pandora's box of legal curiosities and the swarm thus released will in due time return to the Court to roost. I can only hope that the Court's mavens of penal law who are responsible for the majority opinion here can fortify the same to meet the diverse and adverse reactions that it will predictably create.

On the foregoing premises, I respectfully but vigorously register my dissent on the points indicated and for the reasons advanced therefor