G.R. No. 71863




Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 71863 May 23, 1988 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALEJANDRO POLICARPIO KHAN, accused-appellant. The Solicitor General for plaintiff-appellee. Jose C. Bernabe for accused-appellant. GUTIERREZ, JR., J.: Alejandro Khan was charged before the Regional Trial Court, Branch 159, Pasig, Metro Manila with the crime of violation of Section 4, Republic Act 6425, the Dangerous Drugs Act of 1972, as amended. The crime was allegedly committed as follows: That on or about the 16th day of January, 1984, in the Municipality of Mandaluyong, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused without having been authorized by law, did, then and there wilfully, unlawfully and feloniously sell and deliver to another person two (2) foils of dried marijuana fruiting tops, which are prohibited drugs. Contrary to law. (p. 15, Rollo) When arraigned, the accused-appellant assisted by counsel pleaded "NOT GUILTY." The prosecution's evidence is summarized by the trial court as follows: xxx xxx xxx ... [I]n the afternoon of January 16, 1984, Narcom Operatives headed by Captain Gabriel Paile, upon instruction of their Commanding Officer, Lt. Col. Raval, conducted a "buy bust operation" at Mandaluyong, Metro Manila. Capt. Paile designated Pat. Braulio Basco as the poseur-buyer, who was given by Pat. Maranan a twenty-peso bill whose serial number was noted by the latter. The other members of the team were Pfc. Estrella , Pat. Maranan and Pat. Mangila. At about 7:00 o'clock in the evening of January 16, 1984, the team arrived at Daang-Bakal, Mandaluyong, Metro Manila. Their objective was to conduct an operation against a certain person known by his alias as Ali Khan, for drug pushing. The team encased the area to see if they could find Ali Khan through their confidential informer whom they had contacted in the vicinity. The confidential informer led the poseur-buyer to Ali Khan. After the confidential informer had introduced Pat. Basco (poseur-buyer) to Ali Khan, saying: 'Here is my friend, kindly give the stuff for he needs it. Ali Khan agreed. Thereafter, the confidential informer left. Pat. Basco negotiated with the accused for the purchase of marijuana worth P 20.00 at the back of JRC, Mandaluyong, Metro Manila. The sale was -consumnated or actually took place at Daang Bakal Mandaluyong, in front of a store, where Ali Khan showed Pat. Basco the two (2) foils of marijuana, which he got from his pocket, and when Pat. Basco gave him the twenty-peso bill, Ali Khan gave or delivered the two foils of marijuana dried leaves (Exhs. B- 1 and B-2) to Pat. Basco. Upon delivery of the two foils of marijuana dried leaves, Ali Khan told Pat. Basco to be careful because there were informers around. Thereafter, Pat. Basco gave the pre-arranged signal to his team mates by scratching his head. Pat. Maranan and Pat. Mangila approached them, and apprehended Ali Khan whose real name is Alejandro Policarpio Khan. Pat. Basco handed the two foils of marijuana to Pat. Maranan who in turn showed them to Capt. Paile. While Pat. Basco a distance of about ten to fifteen meters away from them. He saw the exchange of the two foils of marijuana and the twenty-peso bill between them. He saw Ali Khan take out the two foils of marijuana from the pocket of his maong long pants. Before the purchase of the marijuana, Pat. Maranan was instructed by Capt. Paile to jot down the serial number of the twenty-peso bill before it was given to Pat. Basco. The serial number was TH 44224. After paying, Pat. Basco signalled by scratching his head with his right hand. Pat. Mangila and Pat. Maranan rushed to the accused and arrested him. Asked where the money was, the accused took out his brown wallet and they found inside the money and approximately one (1) gram of marijuana leaves. The one gram of marijuana leaves was different from the two foils of marijuana leaves sold by Ali Khan to Pat. Basco. The two foils of marijuana and the one gram of marijuana were submitted to the PCCL for laboratory examination. At the Headquarters of the 13th Narcotics Regional Unit, Narcom, Camp Crame, Quezon City. Pat. Reynaldo Maranan and Pat. Enrico Mangila executed a joint affidavit of arrest of the accused Alejandro Policarpio Khan after the operation on January 16, 1984 (Exh. D), which was subscribed and sworn to before Major Osias S. Torio (PC), the administering officer of Camp Crame, Quezon City on the following day, January 17, 1984. Likewise, Pat. Braulio Basco executed on January 16, 1984 after their operation, an affidavit of poseur-buyer (Exh. E) which was subscribed and sworn to before administering Officer Major Osias S. Torio (PC). Pat. Ernico Mangila issued the receipt for property seized on January 16,1984, certifying that they had seized and taken possesion, among other things of two (2) aluminum foils of dried marijuana leaves from Alejandro Khan y Policarpio (Exh. H). The members of the team tried to persuade Khan to surrender the marijuana he was hiding in his house. Because he refused to cooperate, they brought him to their detachment in Makati where they prepared the pertinent papers, and brought him finally to Camp Crame, Quezon City, where he and the two aluminum foils seized from him (Exhs. B-1 and B-2) and the twenty-peso bill (Exh. E) were turned over to the Narcotics Investigation Section, Investigation Unit for investigation and disposition. Marino Gumabay (PC) of the Narcotic Command received the twenty-peso bill (Exh. E) and he turned it over to the evidence custodian. Gumabay also received from Pat. Maranan the two aluminum foils of marijuana leaves (Exhs. B-1 and B-2) and the one gram of marijuana in connection with the case of the accused Ali Khan, which were subsequently turned over to the PCCL for analysis. Exercising his right to remain silent the accused Khan refused to give any statement. Pursuant to the request of the Narcotics Investigation Unit (Exh. A), Forensic Chemist Tital B. Advincula, conducted a laboratory examination on the two aluminum foils of suspected marijuana fruiting tops (Exhs. B-1 and B-2) to determine the presence of marijuana in said specimen. After conducting the three methods of examination, namely: (1) Microscopic examination, (2) duquenois-levine test, (3) thin layer chromatography, Chemist Advincula found the specimen (Exhs. B-1 and B-2) positive for marijuana, a prohibited drug (Exh. C-1). She prepared and submitted Chemistry Report D-55-84 (Exh. C).<äre\|\|anº•1àw> (pp. 16-18, Rollo) The accused-appellant admitted that he was apprehended by the Narcom operatives on January 16, 1984. However, he denied the charge against him. According to the appellant what transpired between him and the Narcom operatives on that date was as follows: xxx xxx xxx ... On that day, January 16, 1984, he drove the jeep of his father from 5:00 o'clock in the morning up to 7:00 o'clock in the evening. After giving the boundary to his father for that day, he went down the house and drank soft drinks at the corner store of Aling Chit at Magalona St., and Daang Bakal St., Mandaluyong. His companions were Fortunato Agustin, Boy Hipolito the owner of the store, and This boarder who was eating popcorn. When four men approached him, one of them called his name. He turned his face towards the man who called him. The latter put his arm on his (Ali Khan's) shoulder. The man frisked him but found nothing in his person. The accused Khan was shocked as he remained standing. The man told him that they have something to talk about and to go with them. He acceded. They went to a Ford Fierra jeep which was parked about 7-8 houses away from the store of Aling Chit Pat. Braulio Basco and Pat. Enrico Mangila were not among the four men who approached him. Neither was Capt. Gabriel Paile. Among those who testified against him, he could remember only Pat. Maranan as one of the four persons who escorted him to the Ford Fierra. At the place where the Ford Fierra was parked, they asked him some names and their addresses which he could not recall anymore. He could not answer Pat. Maranan because he did not know the persons whose names they were asking. Thereafter, the Ford Fierra left and he shouted 'why should we leave the place, I have not done anything wrong.?' He was brought to Makati at Edison Street. When he was brought upstairs of an old garage, the door was opened by Pat. Mangila, who was the same Pat. Mangila who testified against him. Pat. Maranan, Capt. Paile and three others whose names he did not know, went inside the room. Pat. Maranan pulled out of his office drawer two (2) pieces of papers which he asked Khan to sign. He affixed his signature because Pat. Maranan threatened him. The pieces of paper where he affixed his signature were placed by Pat. Maranan inside a plastic bag which appeared to contain marijuana. Thereafter, Pat. Maranan got two aluminum foils from the right side drawer of his table which appear to be Exhibits B-1 and B-2 for the prosecution. He could not say exactly whether or not Exhibits B-1 and B-2 were the two aluminum foils which Pat. Maranan took from his drawer because Exhibits B-1 and B-2 were different from the aluminum foils taken by Pat. Maranan in the sense that in the aluminum foils (Exhs. B-1 and B-2) marijuana can be seen while in these aluminum foils that were taken by Pat. Maranan from his drawer, they were completely wrapped. The accused Khan denied that Exhibits B-1 and B-2 were taken from him, because those two aluminum foils were taken by Pat. Maranan from his drawer, and he never owned or possessed them. The accused Alejandro Khan also denied that the twenty-peso bill (Exh. E) was taken from him because it was taken by Pat. Maranan from his pocket. After Pat. Maranan had brought out the twenty-peso bill (Exh. E) and the two aluminum foils (Exhs. B-1 and B-2), he typed something. While Pat. Maranan was typing, accused Khan asked his wife to call his brother-in-law Roger de los Santos, who was a patrolman in the South Sector at Fort Bonifacio. While Pat. Maranan was typing, Capt. Paile and Pat. Mangila were present. Pat. Basco arrived about half an hour later and that was the first time that he saw Pat. Basco. When Pat. Roger de los Santos arrived, he told his brother-in-law that the two aluminum foils and the P 20-bill were not really recovered from him. Pat. de los Santos talked to Pat. Maranan, telling him 'Pare, I think it was not right that you do that to my brother-in-law since those things were not really recovered from him.' Pat. Maranan told Pat. de los Santos to talk to Capt. Paile and they talked to each other for about 6-7 minutes. While his brother-in-law was talking to Capt. Paile, a person unknown to the accused approached, and asked him how much money he could raise to settle the case. The accused inquired why money would be asked from him when there was no truth about the charge. The man moved away from him. The accused Alejanro Khan denied that he negotiated with Pat. Basco regarding the purchase by the latter of marijuana which started at the back of Jose Rizal College, and claimed that he saw Pat. Basco at it the Makati detachment about half an hour after their arrival He likewise denied that Pat. Maranan got the twenty-peso bill (Exh. E) from his wallet together with one gram of marijuana. He likewise denied title testimony of Capt. Paile to the effect that he said to the former 'Captain pasensiya na naipit lang ako kung kaya ako umulit.The accused submitted two pictures depicting the store of Aling Chit and the basketball court (Exhs. 1 and 2). The store of Aling Chit where he was drinking was only five houses away from his residence and the basketball court was across the store of Aling Chit separated by railroad tracks. (pp. 18-20, Rollo) Fortunato Agustin corroborated the testimony of the accused-appellant. He testified: xxx xxx xxx ... [T]hat on January 16,1984, at about 7:00 o'clock in the evening, he, Ali Khan, and Boy Hipolito were in the store of Aling Chit located at Daang Bakal, Pasig, Metro Manila. They were drinking soft drinks and eating popcorn. Four persons in civilian clothes suddenly rushed to them. They were ordered to stand up and were frisked one by one. After two persons had frisked the three of them, the four persons left together with the accused Alejandro Khan. Nothing was found in his person nor in the person of Boy Hipolito and Alejandro Khan. From the time the four persons approached them until the time they brought Ali Khan to the Ford Fierra, two or three minutes elapsed, and during that period of time there was no conversation between them and the two persons who frisked them. After the four persons had left together with Alejandro Khan, Hipolito went to the house of Ali Khan to inform his parents what happened to their son. Upon reaching the house of Ali Khan, Hipolito informed Ali's brother-in-law, Pat. Rogelio de los Santos, about what happened to Ali Khan. Driving a jeepney, he together with Pat. de los Santos, his wife, and the wife of Alejandro Khan, went to the Narcom detachment at Edison Street, Makati, Metro Manila. His three companion went inside the office of the Narcom detachment while he remained in the jeep. After one hour, more or less, his companions came out and they went home to Mandaluyong. (p. 21, Rollo) The accused also presented as his witness Pfc. Rogelio de los Santos, his brother-in-law who testified as follows: xxx xxx xxx ... [Tlhat he and his companions arrived 30 minutes earlier at the Narcom detachment at Edison St., Makati, when Capt. Paile and his companions arrived. Pat. de los Santos introduced himself as a policeman also, and he was advised to go upstairs. Pat. Maranan who was ahead followed by Capt. Paile knocked at the door which was opened by Pat. Mangila whom he came to know because Capt. Paile introduced him to the group. Alejandro Khan was investigated by Pat. Maranan. The accused Ali Khan told him that nothing was taken from him and that he had not done anything wrong. Upon being so informed, he talked to Capt. Paile who told him that they were conducting an operation and that it happened that his brother-in-law was in the store and was taken by the group. He was told by Capt. Paile to talk to Pat. Maranan and upon doing so, the latter did not answer and told him to just wait outside. Thereafter, Ali Khan's wife went to him saying that Pat. Maranan was already placing foils, of which he did not know if they contained marijuana and the twenty-peso bill which they were asking his brother-in-law to sign. He went inside the investigation room and told Maranan 'Brod, wala naman kayong nakuha sa tao bakit lalagyan ninyo yan,' Pat. Maranan told him to talk to Capt. Paile and when he talked to Capt. Paile, the latter told him to talk to Pat. Maranan, since he was the investigator. Pat. de los Santos did not do anything more. Pfs. de los Santos further declared that he saw Pat. Basco among the group of Capt. Paile when they arrived at the Headquarters. Thereafter, he, and his wife and Fortunato Agustin left the Narcom, Makati detachment and went home. (pp. 21-22, Rollo) As between these two conflicting versions, the trial court gave credence to that of the prosecution. The accused was found guilty beyond reasonable doubt of the crime charged and sentenced to suffer life imprisonment with all the accessory penalties thereof, to pay a fine of Twenty Thousand Pesos (P20,000.00) with subsidiary imprisonment in case of insolvency, and to pay the costs. The trial court also ordered that the preventive imprisoment undergone by the accused shall be credited in his favor pursuant to Article 29, Revised Penal Code, as amended by RA 1627 and that the aluminum foils of marijuana leaves (Exhs. B-1 and B-2) be confiscated in favor of the State and delivered to the National Bureau of Investigation, Forensic Chemistry Section, Dangerous Drugs Board Unit, Manila. The appellant assigns the following errors: I. THE TRIAL COURT ERRED IN BELIEVING AND GIVING FULL CREDIT TO THE TESTIMONY OF PAT. BRAULIO BASCO THAT THE APPELLANT HAD SOLD TO HIM TWO FOILS OF DRIED MARIJUANA LEAVES AT ABOUT 7:20 IN THE EVENING OF JANUARY 16, 1984 AT DAANG BAKAL, MANDALUYONG, METRO MANILA WHICH IS UNNATURAL IN THE COURSE OF HUMAN EVENTS; AND IN DISCREDITING THAT OF THE APPEAL, WHO REGARDING (SIC) THE SALE OF MARIJUANA AS HE MET THE LATTER ONLY AT THE MAKATI DETACHMENT. II. THE TRIAL COURT ERRED IN NOT GIVING FULL CREDIT TO THE TESTIMONY OF THE ACCUSED THAT THE MARIJUANA LEAVES AND THE TWENTY-PESO BILL WERE NOT TAKEN FROM HIM AS CORROBORATED BY FORTUNATO SAN AGUSTIN; AND THAT THE MARIJUANA AND THE TWENTY-PESO BILL WERE TAKEN ONLY FROM THE DRAWER OF THE TABLE AND POCKET OF PAT. REYNALDO MARANAN, WHO AT THE TIME FORCED HIM TO SIGN TWO SHEETS OF BLANK PAPER. III. THE TRIAL COURT ERRED IN BELIEVING AND GIVING FULL CREDIT TO THE TESTIMONIES OF PAT. REYNALDO MARANAN AND PAT. ENRICO MANGILA AS TO THE EXISTENCE OF THE MARIJUANA LEAVES AND THE TWENTY-PESO BILL WHEN IN FACT, THE ACCUSED CATEGORICALLY DENIED THAT THERE WAS NO TRANSACTION WHATSOEVER AS THE PLACE OF THE ALLEGED NEGOTIATION WAS WELL LIGHTED NEAR THE BASKETBALL COURT WITH SO MANY PEOPLE WATCHING THE BASKETBALL GAME. IV. THE TRIAL COURT ERRED IN NOT GIVING CREDIT AND CREDENCE TO THE TESTIMONY OF THE APPELLANT THAT THERE WAS ILL-MOTIVE WHY THE POLICE OFFICERS TESTIFIED AGAINST HIM WHICH WAS SUFFICIENTLY CORROBORATED BY PFC. ROGELIO DE LOS SANTOS. V. THE TRIAL COURT ERRED IN DISREGARDING THE VERSION OF THE APPELLANT AS WELL AS HIS WITNESSES WHEN THEY WERE NEVER REBUTTED BY THE PROSECUTION. (pp. 1-2, Appellant's Brief). As can be gleaned from the assignments of errors, the appellant raises the sole issue of credibility of witnesses. After a review of the records, we find no substantial reason to depart from the general rule that factual findings of trial courts on the credibility of witnesses should not be disturbed because courts have the opportunity to observe the demeanor and conduct of the witnesses while they are testifying on the witness stand. The appellant denies the charges. He alleges that the 20-minute period testified to by Pat. Basco as the time element in the whole operation leading to the former's arrest was "too short to have the whole gamut of events." The appellant maintains that his version of the incident on January 16, 1984 is more witnessed the time frame of 20 minutes. The argument deserves no merit. The records show that the 20-minute period alluded to by the appellant as the time element in the whole operation is not accurate. Pat. Basco while being cross- examined repeatedly stated that he was not so sure as to how much time it took him to negotiate the purchase of marijuana from the appellant. What is more important is the fact that Pat. Basco as poseur-buyer positively Identified the appellant as the seller of marijuana. We find no inconsistencies in his testimony. Pat. Basco categorically stated that through a confidential informer, he was introduced to the appellant after which the latter sold him two (2) foils of dried marijuana for P20.00. The transaction was witnessed by Pat. Enrico Mangila and Pat. Reynaldo Maranan, members of the "buy-bust operation" who were positioned in strategic places within the vicinity. After Pat. Basco gave the marked P20.00 bill to the appellant, he scratched his head, the pre-arranged signal of the team. Immediately, thereafter, Pat. Mangila and Pat. Maranan apprehended the appellant. They found in his possession the marked P20.00 bill which Basco used to pay for the two (2) foils of marijuana. The records show that the appellant was positively Identified not by one but by three police officers who were members of the "buy-bust operation" in that area. The positive identification of the appellant as the seller of the marijuana leaves prevails over the denials of the appellant. The well-entrenched principle is that greater weight is given to the positive testimony of the prosecution witness than to the accused's denial (People v. Mostoles, Jr., 124 SCRA 906; People v. de Jesus, 145 SCRA 521).<äre\|\|anº•1àw> Furthermore, the prosecution witnesses were all law enforces and are, therefore, presumed to have regularly performed their duty in the absence of proof to the contrary (People v. Gamayon, 121 SCRA 642; People v. Patog, 144 SCRA 429; People v. Natipravat, 145 SCRA 483; and People v. de Jesus, supra). The records show that the police officers had previous knowledge of Ali Khan's activities as a drug pusher and went to Daang Bakal precisely to apprehend him in the act. The fact that Pats. Maranan and Mangila did not mention in their testimonies the negotiation between Pat. Basco and the appellant prior to the actual transaction of sale of marijuana by the appellant for the P20.00 given by Pat. Basco does not weaken the prosecution's evidence. Each of the officers was given a role in the "buy-bust operation." Pat. Basco was designated to transact with the appellant. Maranan and Mangila were designated to arrest the appellant during the actual transaction while other members of the team were sent ahead to conduct surveillance of the area. The appellant insinuates ill-motive on the part of the police officers who testified against him. According to him, three years ago there was an incident involving him and a policeman named Pat. Carlos Villaruel from Mandaluyong wherein charges and counter-charges were filed before the Police Commission and the latter told him that he would not stop until he finds him (the appellant) behind bars. The appellant now contends that Villaruel is a "compadre" of a member of the raiding team who was responsible in egging the team to conduct the particular operation against the accused-appellant. This alleged ill-motive is not credible. Apart from narrating the incident with Villaruel, the appellant did not present sufficient evidence to substantiate this charge. In fact, based on his statements in his brief, his knowledge as to the relationship between Villaruel and one of the police officers who testified against him is only hearsay. Thus, he states: "This kind of relation is hard to prove but such an information is gathered from the very mouth of another member of the Makati Detachment." The records show that the appellant was guilty as charged. We agree with the trial court to the effect that: The Court cannot give credence to the version of the accused. The prosecution has clearly and satisfactorily proven beyond per-adventure of doubt that the accused had sold to Pat. Braulio Basco two foils of dried marijuana leaves at about 7:20 in the evening of January 16, 1984 at Daang Bakal, Mandaluyong, Metro Manila. Pat. Braulio Basco, Pat. Reynaldo Maranan and Enrico Mangila corroborated each other substantially as to how they entrapped the accused Policarpio Khan. The presumption of innocence of the accused has been overcome. (p. 22, Rollo) xxx xxx xxx xxx xxx xxx The accused attempted to show that the two aluminum foils of marijuana (Exhs. B-1 and B-2) were taken by Pat. Maranan from his table drawer and the twenty-peso bill from his pocket to prove his claim corroborated by Fortunato San Agustin that at Daang Bakal, Mandaluyong, nothing was taken from him. It should be remembered that the entrapment at Daang Bakal was testified to by Pat. Basco, Pat. Maranan and Pat. Mangila. And their positive testimonies which weathered cross-examination of counsel of the accused clearly established that the accused Khan delivered to Pat. Basco, the poseur-buyer, two aluminum foils of marijuana (Exhs. B-1 and B-2) in consideration or in exchange of a P20.00-bill whose serial number was previously noted by Pat. Maranan. When the accused was arrested then and there, Pat. Basco delivered the two aluminum foils of marijuana to Pat. Maranan, and that twenty-peso bill was taken by Pat. Maranan from the wallet of the accused together with a one-gram marijuana leaves. Socorro it is not surprising that when the accused was interviewed at Makati detachment, the two aluminum foils of marijuana and the P 20-bill were in the possession of Pat. Maranan. The testimony of Fortunato Agustin which failed to give an account of the foregoing incident and who corroborated the accused Khan relative to his arrest, deserves little weight, as he is biased in favor of the accused being a neighbor for six or seven years. The alleged circumstances discussed by the accused in his memorandum refer to insignificant details that reinforce rather than detract from the credibility of the prosecution witnesses. Such minor inconsistencies show that the prosecution witnesses were not rehearsed, that they testified on their recollection on facts and events that happened four months before they took the witnesses stand, and that they do not denote a deliberate intent to utter falsehoods. (See People v. Jureidini, 76 Phil. 219; People v. Quiatchon, 104 Phil. 1047; People v. Selfaison, 1 SCRA 235; and People v. Gongora, 8 SCRA 472)." (pp. 23-24, Rollo) WHEREFORE, the instant appeal is DISMISSED. The questioned decision of the Regional Trial Court, Branch 159, Pasig, Metro Manila is AFFIRMED. SO ORDERED. Fernan (Chairman), Feliciano, Bidin and Cortes, JJ.,concur. The Lawphil Project - Arellano Law Foundation