[A.M. No. CBD-99-660.December 13, 2000]

ATTY. DE LAS ALAS vs. PUBLIC PROSECUTOR JAMOLIN

SECOND DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated DEC 13 2000.

A.M. No. CBD-99-660(Atty. Manuel Ramon De las Alas vs. Public Prosecutor Conrado Jamolin.)

For consideration is petitioner's motion for reconsideration of the Court's resolution, dated, August 7, 2000, denying his petition for review of the Integrated Bar of the Philippines Resolution No. XIV-000-245 which dismissed for lack of merit the complaint for disbarment filed by him against respondent Atty. Conrado Jamolin. The Court denied the petition for review on the ground that petitioner had then a pending motion for reconsideration in the IBP. Petitioner now claims that his aforesaid motion for reconsideration has since been denied (IBP Resolution No. XIV-2000-438, dated August 25, 2000) and prays that the denial of his petition for review be reconsidered.

The Court finds petitioner's motion for reconsideration to be well taken and GRANTS it. However, the Court finds the petition for review to be without merit and, therefore, RESOLVES to DENY it.

The facts in this case are as follows:Petitioner filed a complaint for disbarment against respondent based on the latter's conduct of the preliminary investigation of a complaint for attempted murder and serious physical injuries which petitioner had filed against Jose and Antonio de la Cruz. Respondent was at that time Assistant City Prosecutor of Quezon City. It appears that petitioner's complaint, docketed as I.S. No. 99-0434, was set for hearing on January 26, February 2, February 9, February 16, February 23, and February 25, 2000. The first hearing was cancelled due to the absence of the parties. At the hearings on February 2, 9, 16, and 23, 2000, the parties appeared, but the defendants failed to submit their counter-affidavits. On February 23, 2000, the defendants filed a motion for the consolidation of petitioner's complaint (I.S. No. 99-0434) with I.S. No. 99-1067 (for attempted rape) which Judith de la Cruz had filed against petitioner and then pending before Assistant Prosecutor Prospero Seyana. It was alleged that the two cases arose from the same incident. Consequently, respondent cancelled the hearing on February 25, 1999, allowed the consolidation of the cases, and set the hearing thereon on April 15, April 20, and May 11, 1999. Petitioner then filed his counter-affidavit and reply to the supplemental affidavit in I.S. No. 99-1067 (for rape). Jose and Antonio de la Cruz, on the other hand, filed their counter-affidavit in I.S. No. 99-0434 (for attempted murder and serious physical injuries)

On August 24, 1999, respondent, as Assistant City Prosecutor, issued a joint resolution recommending the filing of an information for serious physical injuries against Jose de la Cruz and another one for attempted rape against herein petitioner Manuel de las Alas. Respondent's resolution was approved by the City Prosecutor, upon the recommendation of Assistant City Prosecutor David L. Mirando, Jr., and the corresponding informations were thereafter filed on September 17 and November 12, 1999, respectively.

In his complaint for disbarment, petitioner alleged that private respondent deliberately delayed the resolution of the complaint filed by him against Jose and Antonio dela Cruz. He cited a Department of Justice Circular which provides that the preliminary investigation of any complaint should be terminated within 45 days from inception. Petitioner further alleged that respondent erroneously ordered the consolidation of the criminal complaints even though they did not involve the same parties; that there was no probable cause to charge him with attempted rape because the complaint was merely concocted; and that respondent did not attach the records of the preliminary investigation to the information for attempted rape in I.S. No. 99-1067 in order to suppress the evidence.

The investigating commissioner of the IBP, Atty. Winston D. Abuyuan, recommended the dismissal of the case. The pertinent part of his report stated:

The only issue to be resolved is whether or not respondent's actuations and conduct in handling of the criminal cases filed and resolved by him constitute sufficient grounds to impose disciplinary sanction against him.

As pointed at by the respondent, his resolution in I.S. No. 99-0434 and I.S. No. 99-1067 is based on the evidence presented to him for evaluation. This is subject to review by a Division Chief and subject to the approval of the City Prosecutor. These proceedings or procedures in the Prosecutor's Office are not only internal in character but also covered by the Rules of Court (Rule 112 on Criminal Procedure). On the matter of the Department of Justice Memorandum Circular, averred to by complainant, this is directory and not mandatory in character. Bad faith or misconduct cannot be attributed to respondent who is presumed to have acted within the limits of his duties and responsibilities as a prosecutor.

We recognize that complainant may be dissatisfied with the outcome of what he believes is a meritorious case but he has not sufficiently established respondent's bad faith or misconduct. And on the alleged misappreciation of complainant's evidence in the criminal cases, these can be best resolved in the court where the cases are pending and where complainant can avail of all remedies allowed by law.

The IBP approved and adopted the foregoing report and recommendation and accordingly dismissed petitioner's complaint. Hence this petition for review.

The petition should be denied. A member of the Bar may not be disciplined for misconduct as a government official except when such misconduct affects his qualification as a lawyer or shows moral delinquency on his part (Gonzales-Austria v. Abaya, 176 SCRA 634 (1989)). In the case at bar, petitioner has not only failed to overcome the presumption that respondent acted in the performance of his official duties, but he has likewise failed to show conduct on the part of respondent which would justify the imposition of disciplinary sanctions on him.

First. The time it took respondent to finish the preliminary investigation is not, by itself, proof that he deliberately delayed its disposition. It appears that the hearings were reset in order to afford the parties opportunity to be heard. The consolidation of the two cases may have contributed to the delay in the termination of the investigation. However, respondent cannot be faulted for this. Under Rule 31, ~1 of the Rules of Civil Procedure, cases may be consolidated where, as here, there is a common question of fact. It is noteworthy, in this connection, that at no time during the preliminary investigation of the cases did petitioner ever object to the pace of the proceedings.

Second. Petitioner alleges that if it were not for the complaint for disbarment which he had filed on October 1, 1999 against respondent, the latter would not have filed the information for serious physical injuries in I.S. No. 99-0434 on November 12, 1999. As respondent explains, however, the informations prepared by assistant city prosecutors have to be approved by the City Prosecutor and their filing in court is the responsibility of the Records Division of the City Prosecutor's Office. The record of this case does not show when respondent gave to the Records Division of the City Prosecutor's Office the information which he had prepared in I.S. No. 99-0434. In the absence of evidence on this question, it is not possible to determine whether the alleged delay in the filing of the information in that case was attributable to respondent or to other personnel of the City Prosecutor's Office.

Third. Petitioner alleges that respondent suppressed evidence by not attaching the record of the preliminary investigation to the information for attempted rape. This allegation is likewise without merit. Respondent had no duty to attach such record to this information. Such record is not part of the record of the criminal case. In accordance with Rule 112, ~8, if petitioner desired to make use of the record of the preliminary investigation, he should either ask the court to order the production of the same or introduce such record himself.

The other allegations made by petitioner concern respondent's appreciation of the evidence in finding probable cause. The review of such findings is not proper in a disbarment proceeding. Petitioner should instead have filed a petition for review before the Office of the Secretary of Justice.

Very truly yours,

(Sgd.) TOMASITA MAGAY-DRIS


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