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SECOND DIVISION

G.R. No. 80481 June 27, 1990

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. JOSEFINO FERNANDEZ and JOVEN PITOGO, accused, JOVEN PITOGO, Accused-Appellant.

Traversing the presentation of the prosecution, the version of accused Pitogo was synthesized by the court below in its decision, thus:

The night of February 20, 1985, after having garaged or retired his tricycle, he was told by a nephew that he was to be arrested by NARCOM agents that night. He called Josefino Fernandez and Quiel Herce to his house at Brgy. Looc, Calamba, Laguna, to confer with them on what to do regarding the impending arrest. When the two came, he told them that he and Fernandez were to be arrested by NARCOM agents instigated by Andres Narvaja, a NARCOM agent whose brothers Vic and Felix Narvaja they have earlier charged for frustrated homicide.chanroblesvirtualawlibrary chanrobles virtual law library

They decided to refer their problem to the Calamba Police Station, so they all rode (on) the tricycle of Quiel Herce. While on their way to town, their tricycle was blocked by a Narcom car. He and Quiel Herce ran away leaving behind Josefino Fernandez who was silted (sic) inside the side car. He claimed he never left Brgay. Looc from the time this incident happened on February 20, 1985, till August 26, 1985, during which time he continuously drove a tricycle. He was arrested only on August 26,1985, by Pat. Cansanay, and Muang of the Calamba Police Station. ⁶

Charged in an information dated July 18, 1985, the accused, assisted by their counsel de parte, were arraigned on September 26, 1985 where both pleaded their innocence. After trial, both accused were found guilty beyond reasonable doubt. The judgment of conviction was promulgated in the presence of accused Joven Pitogo and his counsel in open court on May 28,1987. An order of arrest was issued for the apprehension of accused Josefino Fernqndez. ⁷chanrobles virtual law library

Appellant Pitogo, in his assigrunent of errors in this appeal, submits that the lower court committed reversible error (1) when it convicted the accused on the strength of the testimonies of S/Sgt. Edgar Groyon and Rosa Zamora Manalad, and (2) when it imposed the maximum penalty of life imprison-ment on the basis of a not altogether convincing evidence founded on the testimonies of the two (2) witnesses. ⁸chanrobles virtual law library

As the conviction of the accused was anchored on the testimony of a lone eyewitness and corroborated in part by documentary evidence authenticated by another, a meticulous review of the evidence and the conclusions of the court a quo is called for. Courts must be extra vigilant in trying drug charges lest an innocent person is made to suffer the unusually severe penalties for drug offenses. ⁹ Our jurisprudence is built around the concept that it is preferable for the guilty to remain unpunished than for an innocent person to suffer a long prison term unjustly. ¹⁰ chanrobles virtual law library

A reading of the appellant's brief, the assigned errors wherein are tenaciously assailed by the Solicitor General, shows the debility of the defense. Primarily, appellant claims that S/Sgt. Edgard Groyon and Rosa Zamora-Manalad are not the best witnesses to prove the guilt of the accused beyond reasonable doubt and that their testimonies would at best be secondary, if not hearsay, considerin that there are others more qualified and convincing to testify. ¹¹chanrobles virtual law library

This submission is bereft of merit. The matter of presentation of its witnesses by the prosecution is not for the accused or, except in a hmited sense, for the trial court to control. Discretion belongs to the city or provincial fiscal as to how the prosecution should present its case. He has the right to choose whom he would present as witness. ¹²Moreover, if the defense believes that there are other witnesses who could have exculpated the accused, it should have called for them, even by compulsory process. ¹³chanrobles virtual law library

Next, appellant faults the prosecution for not a charge for illegal possession of firearm and/or ammunition against accused Josefino Fernandez. Suffice it to say, as aptly argued by the Solicitor General, that the filing of a complaint for illegal possession of firearms is entirely immaterial and irrelevant in this case. That is a matter that may be taken up at the proper juncture and not as an incident of the case at bar.chanroblesvirtualawlibrary chanrobles virtual law library

Lastly, appellant stresses the fact that Rosa Zamora-Manalad, Chief of the Forensic Chemist Section of the National Bureau of Investigation, merely confirmed the report of one Ma. Lourdes Fernandez-Duncan, a senior toxicologist, and did not personally examine whether or not the specimen is positive for marijuana. As correctly observed by the Solicitor General and bome out by the records, while it is true that Ma. Lourdes Duncan performed the chemical analysis, her report was submitted to Leonora C. Vallado, Supervising Chemist of the Forensic Division of said bureau, who likewise conducted a separate examination on the same specimen before affixing her signature of confirmation on the report. Rosa Zamora- Manalad never testified in this case, as was erroneously stated in the decision of the trial court and in appellant's brief.chanroblesvirtualawlibrary chanrobles virtual law library

It is quite apparent that appellant's brief has made out a weak case for the defense. Be that as it may, however, our inquiry does not end there nor should we necessarily sustain the conviction decreed by the lower court. We are guided by the cardinal and long standing rule in this jurisdiction, the plethora of cases whereon renders citations unnecessary, that to merit conviction the prosecution must rely on the strength of its own evidence and not on the weakness of the evidence presented by the defense. An accused must always be deemed innocent until the contrary is proved beyond reasonable doubt. ¹⁴chanrobles virtual law library

A more careful scrutiny of the testimony of S/Sgt. Groyon reveals not mere minor contradictions but a lacuna in the evidence fatal to a finding of guilt. Although he was supposedly at a distance of about twenty (20) meters away, Groyon attested to the following facts:

FISCAL You stated that you positioned yourself together with Sgt. Gumawid while agent Yee must contact Alyas Ben, where was your informant at that time?chanrobles virtual law library

A He was with Inocencio Yee, sir.chanroblesvirtualawlibrarychanrobles virtual law library

FISCAL: What was the role of this informant? chanrobles virtual law library

A He was the one who contacted Alyas Ben so that Ben can sell marijuana to Inocencio Yee.chanroblesvirtualawlibrary chanrobles virtual law library

Q As you stated of (sic) that distance of 20 meters, you can see Yee, was there an instance before the contact of Yee and Alyas Ben where your informer leave (sic) the place, or leave away (sic) from Agent Yee?chanrobles virtual law library

A There is Sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q What happened when informant leave (sic) Agent Yee?chanrobles virtual law library

A The informant left agent Yee as he has introduced Yee to Alyas Ben to buy marijuana.chanroblesvirtualawlibrary chanrobles virtual law library

COURT: Was the sale consummated at that very moment? chanrobles virtual law library

A Yes your honor.

xxx xxx xxx

COURT: How did Yee consume (sic) that.sale? A Yee handed the money, then Alyas Ben gave the marijuana to him. ¹⁵chanrobles virtual law library

Sgt. Groyon, however, later corrected himself:

A As soon as the informant introduced Yee to Alyas Ben, there was a conversation that took place. I was a little far and so we did not hear the conversation, but from what we gathered from their action, that we saw, there might have been an agreement to sale (sic), Alyas Ben left the place.chanroblesvirtualawlibrary chanrobles virtual law library

COURT: After Yee was introduced to Alyas Ben by the infor- mant, the informant left?chanrobles virtual law library

A Yes, your honor.chanroblesvirtualawlibrary chanrobles virtual law library

Q You said Alyas Ben left? chanrobles virtual law library

A Yes Sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q Meaning to say Alyas Ben left Yee in that place? chanrobles virtual law library

A Yes sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q Where did Alyas Ben go?chanrobles virtual law library

A Alyas Ben walked along the street and I lost sight of him when he turned one of those alleys, your honor.chanroblesvirtualawlibrary chanrobles virtual law library

COURT: Then what happened? chanrobles virtual law library

A After several minutes, Alyas Ben came back and he was with another person.chanroblesvirtualawlibrary chanrobles virtual law library

Q What is the name of this person who came with Alyas Ben? chanrobles virtual law library

A He is known as Alyas Fritz, Sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q Then what happened? A It was when Alyas Ben returned with Fritz that the sate was consummated, it was Fritz who gave the marijuana. ¹⁶chanrobles virtual law library

xxx xxx xxx

FISCAL: Now that the sale was consummated, according to chanrobles virtual law library

A you the marijuana came from Alyas Fritz which is Josefino Fernandez. After the sale was consummated, Yee gave us a signal to indicate that the sale was finished.

xxx xxx xxx

Q How about that money which were (sic) used in the buying of dried marijuana, were you able to see that again? chanrobles virtual law library

A Yes sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q Where and from whom did you see the money again? chanrobles virtual law library

A We recovered the money which was used in buying marijuana from the pocket of Fritz. ¹⁷

The accused are charged with unlawfully selling and/or dehvering a prohibited drug. The law proscribes not only the act of selling but also, although not limited to, the act of delivering. ¹⁸The commission of the offense of illegal sale of marijuana requires merely the consummation of the selling transaction. What is important is that the poseur-buyer received the marijuana from the accused. ¹⁹ chanrobles virtual law library

In this case, in all probability S/Sgt. Edgard Groyon did not see the alleged consummation of the illicit transaction. In the early part of his testimony, he stated that after the informer had introduced the poseur-buyer Inocencio Yee to Alyas Ben (later Identified as accused Joven Pitogo), the sale was at that very moment consummated when Alyas Ben gave the marijuana to Yee. ²⁰ If S/Sgt. Groyon was really an eyewitness, he could not have been mistaken. However, in the later part of his testimony, he said that the sale was consummated when Fritz (thereafter Identift'ed as accused Joseftno Fernandez) gave the marijuana to Ye. ²¹ chanrobles virtual law library

Now, the question that irresistibly demands an answer is how the illicit transaction was really consummated. Prom the vacillating testimony of the supposed eyewitness, this remains in the realm of dubiety. Yet, it goes without saying that the conviction of the accused must satisfy the test of moral certainty.chanroblesvirtualawlibrary chanrobles virtual law library

Moreover, the same witness stated that after the sale was congilmmated, they waited for the signal of Yee to indicate that the sale was finished. ²²In People vs. Nicandro ²³we pointed out that if the sale was made within the view of the witness and his companions, there would have been no need for them to wait for a signal from the police informant to indicate that the transaction had been completed before closing in and arresting the accused.chanroblesvirtualawlibrary chanrobles virtual law library

On top of these, S/Sgt. Groyon stated that they recovered the money which was used in buying marijuana from the pocket of Fritz (accused Josefino Fernandez). ²⁴However, on cross- examination, he declared that after making a body search of accused Fernandez, he was able to recover the marijuana from the pocket of the latter. Only after a leading question came fiom the court did he answer in the affirmative that what he recovered from accused Fernandez was the money and not the marijuana. ²⁵chanrobles virtual law library

The foregoing inconsistencies from the very lips of the star witness of the proftmtion convince us that conscience should not allow the fate of both accused to rest on the uncorroborated and unreliable testimony of so mercurial a witness.chanroblesvirtualawlibrary chanrobles virtual law library

A rule of unquestioned respectability in cximinal jurisprudence is that if the inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other consistent with his guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction. ²⁶ With the testimony of the lone eyewitness of the prosecution having been irreparably punctured by irreconcilable discordance and shredded by inexpiable doubts, through causes of his own making, it is all too clear that the prosecution has failed to discharge the onus probandi for conviction.chanroblesvirtualawlibrary chanrobles virtual law library

We now return to what we clarified at the outset with respect to accused Josefino Femandez. While, in effect, he committed an act of defiance of the law by escaping, we are not without other prior incidents where such undesirable conduct, which should not be condoned, has sometimes been ascribed to a sense of desperation of those who believe they are guiltless but fear that they cannot prove their innocence. While we castigate and reprove his jumping bail and remaining at large up to now, we have to concede, however, that our disquisition in this case is applicable and favorable to him, hence he is affected by and shall benefit from the acquittal that we hand down in this appeal.chanroblesvirtualawlibrary chanrobles virtual law library

ACCORDINGLY, the appealed decision is REVERSED and SET ASIDE and both accused are hereby ACQUITTED. Accused- appellant Joven Pitogo is hereby ordered to be forthwith released from confinement, unless otherwise detained for some other lawful cause.chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED.