THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLANT, VS. ABDUGAFAR ABUBAKAR, DEFENDANT-APPELLEE.

This is an appeal by the People of the Philippines as plaintiff
in Criminal Case No. 2674 of the Court of First Instance of Sulu
from the order of said Court dismissing the information on a motion to quash
filed by the accused who was therein specifically charged with violation of
Article 171, paragraph 2 of the Revised Penal Code which reads:

“ART. 171. 
Falsification by public officer, employee or notary or ecclesiastic
minister.  – The penalty of prision mayor and a fine not to exceed 2,000 pesos shall be imposed upon any public officer,
employee, or notary who, taking advantage of his offi­cial position shall
falsify a document by committing any of the following acts.”

“Par. 2.  – Causing to appear that persons have
participated in an act or proceedings.”

The information alleges as follows:

‘”That on or about the 14th day of November, 1961, National
Election Day, in Sition Tabu
Manok, Municipality of Panamao, Province of Sulu, Philippines, and
within the jurisdiction of this Honorable Court, the above-named
accused, being then a public school teacher and the Chairman of the Board of
Inspectors of Electoral Precinct No. 3-A. situated in Sitio
Tabu Manok, Municipality of Panamao,
Province of Sulu, and while in the performance of his
election duties as said chairman inside the said polling place, and taking
advantage of his said official position, and with intent to violate the
provisions of the Revised Penal Code, did then and there wilfully,
unlaw­fully and feloniously sign the name of Ambiting
Sahibil, a registered voter in the said electoral
precinct who was then out of the province of Sulu, in
the list of voters, Election Form No. 11, of said electoral precinct and affix
his thumbmark opposite the name of the said Ambiting Sahibil in the said list
of voters, and thereafter detach an official ballot and fill out the same inside
a voting booth and thereafter drop the same ballot into the box for valid bal­lots,
notwithstanding the protest and objections interposed thereto by an inspect­or
of the Liberal party and watcher of the Liberal party in said Precinct No. 3-A,
thus causing it to appear that the afore mentioned Ambiting
Sahibil participated and voted in the said election
when in fact he did not so participate or vote.”^[1]

There can hardly be any
ground for doubt that from the recitals of the information, the offense charged
therein is that defined and penalized in the above-quoted provision of the
Revised Penal Code.  What led the court a
quo to
grant the motion to quash, is its belief that the offense charged constitutes
an election offense punishable under the Revised Election Code, and therefore
not one to be punished under another law, such as the Revised Penal Code.  This view was taken by the court a quo,
obviously because prior to the filing of the information in Criminal Case No.
2674, an information of identical allegations of how the offense charged was
committed has been filed in Criminal Case No. 2597.  Thus the information in said case reads as
follows:

“The undersigned First Assistant Pro­vincial Fiscal accuses Abdugafar Abubakar of a violation
of Section 138, in relation with Sections 134 to 139, of Republic Act No. 180,
as amended otherwise known as the Revised Election Code, committed as follows:

“‘That on or about the 14th day of November, 1961, National
Election Day, in Sition Tabu
Manok, Municipality of Panamao,
Province of Sulu, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, being then a
public school teacher and the Chairman of the Board of Inspectors of Electoral
Precinct No. 3-A, situated in Sitio Tabu Manok, Municipality of Panamao, Province of Sulu, and
while in the performance of his election duties as said chairman inside the
said polling place, and taking advantage of his said official position, and
with intent to violate the provisions of the Revised Election Code and the
Revised Penal Code, did then and there wilfully,
unlawfully and feloniously sign the name of Ambiting Sahibil, a registered voter in the said electoral precinct
who was then out of the province of Sulu, in the list
of voters of said electoral pre­cinct and affix his thumbmark
opposite the name of the said Ambiting Sahibil in the said list of voters, and thereafter detach
an official ballot and fill out the same inside a voting booth and thereafter
drop the said ballot into the box for valid ballots, notwithstanding the
protest and objections interposed thereto by an inspector of the Liberal party
and watcher of the Liberal party in said Precinct No. 3-A, thus causing it to
appear that the aforementioned Ambiting Sahibil partici­pated and voted in the said election when
in fact he did not so participate or vote.’ “^[2]

The only difference to be
noted between the two inform­ations is that in the
first information, violation of Section 138, in relation to Section 134 to 139
of Republic Act No. 180 is charged; whereas, in the second information, what is
charged, on identical facts, is violation of Article 171, paragraph 2 of the
Revised Penal Code.

The information in
Criminal Case No. 2597 was filed on March 1, 1962; but on October 15, 1962, before the prelimi­nary investigation which
was being conducted by the Court of First Instance as provided by the electoral
code, was termi­nated, the prosecuting fiscal filed an Ex-Parte
Motion to Dismiss the Information, which was granted.  A more detailed narration of the history of
Criminal Case No. 2597 is given by
the court a quo,
in its order now under review, as
follows:

“In accordance with the provisions of the Revised Election
Code, the Court presided over by the then Honorable Judge Geronimo Marave, conducted the preliminary investigation.  The Honorable Judge Geronimo Marave, then presiding Judge issued an order requiring
expert’s examination by the NBI of
the signature “Ambiting Sahibil”
and the thumbmark opposite the name appearing in line
7, page 19, of Exhibit “A” to determine whether or not said signature
and thumbmark are those of the accused, and also the
specimen of the thumbmarks and handwriting of the
accused so as to have a basis of
comparison, and for this purpose the prosecuting Fiscal was authorized in the
same order to forward the specimen needed to the NBI for laboratory
examination.

“For several times the case was set for arraignment and trial and
were also postponed for several times, until on September 27, 1962, when this
Court in going over the Record, dis­covered that the preliminary investigation
is not terminated and that the Record does not show any finding by the Court that the accused is
probably guilty of the crime charged and that no warrant of arrest for the
accused was issued although the Record shows that said accused filed and
perfected a bailbond for his provisional
liberty.  By this discovery, the
Presiding Judge addressed and forwarded a com­munication to the Prosecuting
Fiscal informing the latter that the preliminary investigation has not as yet
been terminated and that some­thing must be done by his office to effect the
termination of the same.  In answer to
the said communication, the Prosecuting Fiscal filed a manifestation dated
October 3, 1962, stating among other things, that in compliance with the order
of the Court dated April 27, 1962, appearing on pages 22, 23 and 24 of the
Record, the documentary exhibits for expert examination were forwarded by him
to the NBI for examina­tion and comparison and that the laboratory examination
by the NBI was received by him on June 4, 1962, and by that time the then
Honorable Judge Geronimo Marave was no longer the
District Judge of Sulu, having assumed the position
of District Judge of Basilan City.  Further, it is stated that to obviate legal technicalities he is ready and
willing, either to submit his evidence anew before this Court for preliminary
investigation any date the Court may deem it necessary to do so or submit the transcript of the
stenographic notes of the preliminary investigation and the findings of the NBI
for the purpose of establishing probable cause. 
In said manifestation, the Prosecuting Fiscal prayed that further
proceedings in conjunction with the preliminary investigation be set for October 5, 1962, or any date prior
thereto.

“Before this
Court could set the continua­tion of the Preliminary Investigation as prayed for by the Prosecuting Fiscal, he filed an ex­parte motion to dismiss, appearing on pages 81 to 83 of
the Record, Criminal Case No. 2598.  This
Court giving due course and consideration to the Motion to Dismiss, dismissed
the same in an order appearing
on page 85 of the Record.

“After the dismissal of Criminal Case No. 2587, (sic) the
Prosecuting Fiscal filed Criminal Case No, 2674, 2786, (sic) which is now sought to be quashed by the
defense.”^[3]

The court a quo dismissed the information on a motion to
quash filed by the accused,^[4] and for this act of the said court, the
People, as appellant, assigns the following error:

“THE LOWER
COURT ERRED IN HOLDING THAT THE ALLEGATIONS IN THE
INFORMATION TO THE EFFECT THAT DURING THE NATIONAL ELECTIONS HELD ON NOVEMBER 14, 1961, THE
DEFENDANT-APPELLEE, AS CHAIRMAN OF THE BOARD OF INSPECTORS OF ELECTORAL
PRECINCT NO. 3-A, IN THE MUNICIPALITY OF PANAMAO, PROVINCE OF SULU, VOTED AS
AND IN LIEU OF AMBITING SAHIBIL A REGISTERED VOTER IN THE SAID ELECTORAL
PRECINCT WHO WAS THEN OUT OF THE PROVINCE OF SULU, THUS CAUSING IT TO APPEAR
THAT THE AFORE­MENTIONED AMBITING SAHIBIL PARTICIPATED AND VOTED IN THE SAID
ELECTIONS WHEN IN FACTS HE DID NOT SO PARTICIPATE OR VOTE, ‘CONSTITUTE A
VIOLATION OF THE PROVISIONS OF THE REVISED ELECTION CODE AND PUNISHABLE UNDER
THE SAME.’ “

It is the appellant’s
contention that the facts alleged in the information in question do not
constitute an election offense punishable under the Revised Election Code, but
one clearly and expressly punishable under the Revised Penal Code.  To test the validity of this view, pertinent
provisions in both codes should be cited and quoted for ready reference.

Article 10 of the Revised
Penal Code provides as follows:

“Article 10.  – Offense
not subject to the provisions of this Code. – Offenses which are or in the
future may be punish­able under special laws are not subject to the provisions
of this Code.  This Code shall be
supplementary to such laws, unless the latter should specially provide the
contrary.”

There
can be no question that under the aforequoted
provision, the election law is a special law. 
The provision of said law pertinent hereto, reads:

“Common crimes: 
– Acts and omissions relative to elections not punishable under this
Code but which constitute common crimes shall be punished as provided in the
penal laws applicable thereto.” (Sec. 186, Revised Election Code).

From the foregoing provision of the election code, what would be
the decisive inquiry for the purpose of the instant appeal is whether the acts
alleged in the information are
prohibited and punished by the electoral code. 
The Solicitor General’s submission is that they are not so
punishable.  We agree.

  What may be observed with
relevance in regard to the pertinent inquiry, as above indicated, is that there
is, at most, only an implied prohibition against the act ascribed to the
accused — that of representing himself as one, Ambiting Sahibil, a registered voter, and
voting in the latter’s name, signing and thumbmarking
the proper election documents; as to make it appear falsely that it was Ambiting Sahibil who actually
voted.  There is no provision in the
Revised Election Code that expressly and directly prohibits the act of voting
in place of another registered voter as if that voter had himself voted in
person.  As minutely analyzed by the
Solicitor General, the pertinent provision of the Revised Election Code (Sec.
138 in relation to Sec. 134 to 137 and Section 139) do not include the acts
with which the accused has been charged (pp. 13-16, Appellant’s Brief).  Thus the Solicitor General observed:

“SECTION 138.  – The
first sentence of the first paragraph is addressed to any voter or watcher, who
is granted the right to challenge any person offering to vote who is not regis­tered
in the list or for using the name of another. 
The second sentence of the same paragraph is directed to the board of inspectors which is enjoined to take
the oath of the challenged voter or otherwise satisfy itself as to the truth of
the ground of the challenge.  Nothing in
this paragraph may be said to be a directive to the person challenged to do or
not to do a certain act as to be penalized or punished under this section.

The second paragraph is an instruction to the board to the effect
that for the purpose of receiving and counting the vote, it should demand from
the person challenged his voter’s affidavit or a sworn statement identifying
him, which statement shall be attached to the minutes to be made by the poll
clerk.  Like the first paragraph, the
second paragraph does not contain any prohibition against the doing or not
doing of a certain act by a person desiring to vote for or voting for another,

Otherwise stated, there is no provision in Section 138 making the
acts alleged in the information
criminal.

“SECTION 134.  – The
first sentence speaks of what a voter should do to obtain a ballot.  None of the acts required of him is made
unlawful.  The rest of the section deals
with the correlative duties of the inspectors and the poll clerk.

“SECTION 135:  – This
section prescribes the manner of preparing the ballots.  The acts which are expressly made unlawful
are:  preparing the ballots outside the
voting booth; exhibiting the contents of the ballots to any person; erasing any
printing from the ballots; intentionally tearing or defacing the ballots;
putting on the ballots any distinguishing mark; using carbon paper, paraffin
paper, or other means for making a copy of the bal­lot; and making use of any
other means to identify the vote of the voter. 
None of the acts alleged in the information falls under any of these
categories.

“SECTION 136:  – The
first sentence of the section refers to the surrender by a voter of a voter of
a soiled or defaced ballot to the inspector or poll clerk.  The rest of the provision is addressed to board
of inspectors including the poll clerk. 
None of the acts alleged in the information is mentioned.

“SECTION 137:  – Insofar
as a voter is concerned, this section states that after his ballot is filled,
he shall stamp his thumb-mark on the corresponding coupon and deliver the folded ballot to the
inspector or poll clerk from whom he received it; that he shall affix his
signature and the imprint of the thumb of his right hand in the copy of the
registry list in the column intended for the purpose, after which he shall
depart.  None of these relates to the
acts charged in the information.  The
rest of the section refers to the duties of the election inspectors or poll
clerk.

“SECTION 139:  – The
first sentence gives a voter, candidate, or watcher, on the ground of corrupt
practices, the right to challenge any voter offer­ing to vote.  The second sentence enumerates what the
challenged voter should state under oath – namely, that he has neither received
nor expects to receive, nor has paid, offered or promised to pay, nor has
contributed, offered or promised to contribute money or anything of value as
consider­ation for his vote or for the vote of another; that he has not made or
received any promise to influence the giving or withholding of any such vote;
and that he neither has made any bet nor is interested directly or indirectly in any bet which depends
upon the result of the election – so that the challenge will be dismissed.  The coverage of this section does not include
the acts of which appellant stands accused.”

The prevailing doctrines, as enunciated by this Court, support
the stand of the Solicitor
General.  Thus –

“x x
x an act will not be held to be a criminal act
unless the statute clearly and unmistakenly makes it so. (U.S. vs. Olsen, et. al., 36 Phil. 395,
400.)”

“In the Philippine Islands there exist no crimes such as are
known in the United States
and England as
common law crimes.  No act constitutes a
crime here unless it is made so by law. (U.S.
vs. Taylor, 28 Phil. 599, 604;
Italics supplied.)” (Page 16, Brief.)’

The rule of strict construction which should apply in the
interpretation of criminal statutes, likewise, strengthens the position of the
Solicitor General.  Thus –

“Criminal statutes are to be strictly construed.  No persons should be brought within their
terms who is not clearly within them, nor should any act be pronounced
criminal which is not clearly made so. (U. S.
vs. Abad Santos, 36 Phil. 243, 246; Italics
supplied.)”

“Under the rule of strict construction, such statutes will
not be enlarged by impli­cation or intendment beyond the fair meaning of
the language used and will not be held to include other offenses and persons
than those which are clearly described and provided for, although the
court may think the legislature should have made them more comprehensive.  (59 C.J., 1115-1117; Italics supplied.)”

We are, therefore, constrained to hold that the court a quo
was in error in dismissing Criminal Case No. 264 which charges the accused with
an act clearly and expressly punishable under Article 171, paragraph 2 of the
Revised Penal Code, but not punished with similar clarity and expli­citness, as
is legally required in all criminal prosecutions, under the Revised Election
Code.  So much so, that had Criminal Case
No. 2597 proceeded up to the filing in court of the information of an election
offense after the preliminary investigation, the same could have been properly
dismissed as not charging an offense expressly punishable under the Revised
Election Code, but one which, in accordance with Section 186 of the said Code
quoted earlier above, should be punished as provided in other penal laws
applicable thereto.

Incidentally, it should not matter whether, treated as a common
crime, not as an electoral offense, as the aforecited
section would lay down the distinction between the two offenses, the penalty
imposed by the penal law other than the election statute for the offense
charged is heavier or lighter.  The court
a quo seems to have considered this fact of legal con­sequence as to prompt it to dismiss the
case.  What is import­ant is that the
violation is not left unpunished where, as in the present case, there is a law
clearly and explicitly punishing the
act, the Revised Penal Code which should, accordingly, be enforced and applied
because the provision of the Revised Election Code is, to say the least,
unclear and ambiguous.  The
provision of Section 186 of the Revised Election Code is obviously intended to
prevent any law violator, whether his motivation is solely to pervert the electoral
process, from escaping the punishment imposed by statute for the act he has
committed, for which the election law may have failed to provide, in a clear
and explicit way, not by mere impli­cation, appropriate punishment.

It may be well to note that in comparing the two informations repeatedly referred to herein, the respondent
court considered “insignificant” the difference that the first
information mentions the provision of the Revised Election Code and the Revised
Penal Code as having been violated, while the second information specifies an
article of the Revised Penal Code, as the law violated (page 8, Order, Appendix
A to Appellant’s Brief).  The respondent
court must have had in mind the well-settled rule that not the specification of the provision of law violated, but the
actual recital of the facts in the complaint or information that determines the
real nature of the offense charged (Matilde, Jr. vs. Jabson, 68 SCRA 456; People vs. Arnault,
92 Phil. 252).  This rule should have at
least had a deterrent effect against the dismissal of the instant case.

It may also be pertinent to observe that the same presiding
judge, Hon. Felino D. Abalos,
who dismissed the information in Criminal Case No. 2597 on motion of the prose­cuting
fiscal in the latter’s desire to file another inform­ation charging violation
of Article 171, paragraph (2) of the Revised Penal Code, found the motion to
dismiss filed by the fiscal “in order” (p. 85, Record, Criminal Case
No. 2597).  It is, therefore, hard to see
what brought about the change of heart when the respondent court dismissed the
present information, which it has, in effect, given the prosecuting fiscal the
go-signal to file, as he did file, now Criminal Case No. 2674.

WHEREFORE, the order appealed from is set aside and
Criminal Case No. 2674 is ordered reinstated. 
Let the records of the case be, accordingly, remanded to the court of
origin for proper further proceedings. 
No costs.

SO ORDERED.

Teehankee, Acting C.J., (Chairman), Makasiar, Fernandez, Guerrero, and Melencio-Herrera, JJ., concur.

^[1]
Page 1, Record, Criminal Case No. 2674.

^[2]
Pages 2-3, Record, Criminal Case No. 2597.

^[3]
Pages 5-7, Order, Appendix A to Appellant’s Brief.

^[4]
Pages 135-142, Record, Criminal Case No. 2674.