THE PEOPLE OF THE PHILIP­PINES, PLAINTIFF-APPELLEE, VS. SALIP MANLA, ET AL., DEFENDANTS, SAJILI DIARUL, MACABANG (OR IMAM KAMANG) GUSTAHAM, ADJAN GUSTAHAM, ABDU GUSTAHAM, SOLAIM…

This case is before us on
automatic review of the decision of the Court of First Instance of Zam­boanga del Sur in its Criminal Case No. 1577 convict­ing Sajili Diarul, Macabang Gustaham, Adjan Gustaham, Abdu Gustaham, Solaiman Monajin, and Abdurasid Akong of the crime of
robbery in band with homicide and sentencing
each of them to suffer the penalty of death, to indemnify jointly and severally the heirs of the deceased in the
sum of P6,000.00, to pay jointly and severally the offended party the sum of
P3,000.00 repre­senting the money and the value of the articles taken, and each
to pay his proportionate share of the costs. 
The six persons thus convicted were among the eleven (11) defendants
charged below, including one referred to only as “John Doe”, who
together with Salip Mania and Balawie
Moro had not been apprehended at the time the information was filed.  Two (2) others, namely, Abdulhasa
Abdula and Absan Abdula, who were tried joint­ly with the six (6) convicted
defendants, were acquitted by the trial court on the ground of reasonable
doubt.

The findings of the trial
court with reference to the commission of the felonious acts and the
circums­tances surrounding them, except the sufficiency of the evidence
relating to the accused’s identities as the
perpetrators thereof, are not disputed, to the extent that the defendants have
adopted and reproduced said findings in their brief as their own statement of
facts.  However, they assail the
conclusion reached by the trial court that the evidence has established beyond
reasonable doubt their identities as the perpetrators of the offense charged.

The scene of the crime
was a two-storey house located in barrio Calais of the island-municipality of Olutanga, Zamboanga del Sur, used both as residence and as a general store of the Macion family. 
Because water from the nearby Calais river covers the base of the house during
high tide, the ground floor was actually constructed above ground level.  The structural construc­tion of said house is
aptly described by the trial court in this wise:

“x x x It
is so constructed on the marshes, such that the water from the Calais
River reaches underneath the house
at high tide.  The premises could be
reached from the sea through the Calais
River by boat.  The upper floor of the house is the living
quarters of Cecilio Macion
and his family.  The first floor is a
store x x x with the main
entrance at the front x x x.  At the rear of the store is the kitchen, x x x.  The floor­ing of the kitchen is constructed a
little bit lower than the flooring of the store, such that there is an open
space in between where the store and the kitchen adjoin.  The second floor is accessible by a stairway
located near the kitchen, about seven meters to the main door of the
store.  The whole store on the first
floor could be seen from the second floor through a 1 foot by 6 inches opening on the floor, which was
built for precautionary measure.  Further
to the rear adjoining the kitchen is an extension of the flooring, which is a
sort of a landing place or wharf x x x where one coming to the place from the sea through
the Calais River
by boat can land or anchor.  From the
kitchen one can get into the store through a door, x x
x, or from the kitchen to the wharf through a
backdoor, x x x.  At the side of the house or store is an
alley, x x x, where
customers of the store coming from the wharf may pass through an exit, x x x to the alley, then to the
front of the store where there is the main entrance, x x
x.”

In the late afternoon of February 8, 1960, while
Diego Mahinay, cook of the Macion
household, was preparing supper, he saw through the kitchen window overlooking
the Calais River the approach of two (2) vintas,
which eventually docked alongside the Macions‘
privately-constructed wharf.  Thinking
that the new arrivals were fishermen and realizing that he had no sufficient
viands for that evening, Diego Mahinay stepped out of
the kitchen through the rear door of the Macion
residence and proceeded to meet the men in the vintas.  In one vinta were Abdurasid Akong, Abdu Gustaham and four (4) others
whom he did not know by name but recognized by their faces.  In the other vinta
were Sajili Diarul, Solaiman Monajin, Macabang Gustaham, Adjan Gustaham and another
companion whom he likewise did not know by name.  Upon being informed by the new arrivals that
they had no fish to sell, Diego Mahinay returned to
the kitchen.  Hardly had he entered when Abdurasid Akong and Solaiman Monajin suddenly barged
inside through the backdoor and hastily proceeded into the store by way of the
connecting door from the kitchen.  At the
same time their other companions slipped through the alley beside the store and
entered by way of the main door in front. 
Completely taken by surprise and unable to understand why Abdurasid Akong and Solaiman Monajin should enter the
store through the kitchen instead of the usual passage by the side alley, Diego
Mahinay followed behind them.  When he reached the door connecting the
kitchen to the store he saw Abdurasid Akong fire his carbine at the storekeeper, Raymundo Yuayan.  The result was fatal.  The rest of Abdurasid’s
companions then began breaking the store’s shelves and looting the contents
there­of.  Diego Mahinay
doubled back to seek a hiding place.  He squeezed himself into the small space
separating the floor of the store from that of the kitchen, and remained there
until after the looters had left the premises.

Albino Abayle, a household helper of the Macions,
substantially corroborated Diego Mahinay’s version of
the facts.  When the two (2) vintas arrived that afternoon, Albino was resting at the
wharf after the day’s work.  With him at
the time was Ciriaco Mariño,
with whom he was engaged in light
talk.  He noted the new arrivals with
more than passing interest because of their large number and because some of
them were carrying unidentified ob­jects wrapped in sacks.  He saw Abdurasid Akong and Solai­man Monajin enter the kitchen door and the others pass through
the alley and enter by way of
the main door in front.  Shortly after
the group entered the store, Albino Abayle heard shots inside.  He rushed through the kitchen and into the
store to investigate, and saw Raymundo Yuayan prostrate on the floor and the men he
had seen arrive breaking the store’s shelves and laying their hands on the
merchandise displayed there.  Albino ran
under the store to hide, squatting in the water which had by then risen
considerably due to the incoming high tide. 
From his hiding place he saw Diego Mahinay
squeezed between the floors of the kitchen and of the store.  It was only when the raiders were taking
their loot to the vintas, with their firearms clearly
visible, that it dawned upon him
that the objects wrapped in sacks they were carrying when they arrived were
actually carbines.

The occurrence from
beginning to end was witnessed by Felisa Yuayan de Macion, wife of the
storeowner, from the residential portion of the house.  She had earlier gone upstairs to rest and
through the small open­ing on the floor directly above the store she saw
several men pointing their firearms menacingly and one of
them actually shooting the storekeeper. 
When one of them started to go up to the second floor where she was she
immediately jumped through the window into the water below, injuring her right
shoulder and leg as a result, for which she was medically treated in Zamboanga City the next day.

The accused have been
positively identified by the three (3) witnesses, who
had no conceivable reason, as none has been suggested, to falsely incriminate
them.  And the former could not have
possibly mistaken the latter for other persons because they were frequent
visitors at the store.  Abdurasid Akong, Abdu Gustaham, Macabang Gustaham and Adjan Gustaham used to sell fish
there; Sajili Darul was a
former house helper of Mrs. Macion’s brother-in-law and hence familiar, at least by
face, to Macion household; and Solaiman
Monajin was a regular customer at the store every
Sunday.  That particular afternoon of the crime, Diego Mahinay even talked to them and
asked if they had fish to
sell.  There was no attempt to disguise
themselves.  Under those circumstances
there could hardly have been a mistake on the part of the wit­nesses in
identifying them.

Each defendant set up the
defense of alibi.  Abdurasid Akong would have us
believe that at the time of the robbery he was 12 kilometers away in Polo Bohangin Mahaba, selling fish to
one Abdulhari; and that he left his house in Gandaan at 3:00 p.m. and arrived at Polo Bohangin Mahaba an hour and a half later, staying there until
sunset when he started paddling back home, arriving at his house at
almost midnight.  Yet by his own admission, during the more than
six (6) years that he had been a fisherman that was the only occasion when he
went to Polo Bohangin Mahaba
to sell his catch.  In the past he regularly catered to customers
in barrio Calais,
where he got better prices.  There is no believable explanation as to
why Abdurasid Akong should
suddenly transact his business
in Polo Bohangin Mahaba
on the date in question in spite
of the fact that it was much further away. 
This alibi, although confirmed by Abdulhari,
cannot prevail over the positive identification made by the three disinterested
eyewitnesses, who had no demonstra­ted motive to perjure themselves against
him.

The Gustaham
brothers, namely, Macabang, Abdu and Adjan, and co-accused Solaiman Monajin, claimed that from 7:00 a.m. up to about 6:00
p.m. of February 8, 1960, they were working in the farm of one Akimodin Buto in Tando
Dial, about 3 1/2 kilometers from barrio Calais.  Although their alibi appears to be
substantiated by the farm owner, Akimodin Buto, the same, like that of Abdurasid
Akong, can­not prevail over the direct and positive
evidence of their presence at the scene of the crime.  The same observation also holds true with respect to the alibi put
up by Sajili Diarul, who
merely explained that on hole day of February 8, 1960 he, together with his
father and one Saraban, was cultivating their farm at
Ganda-an, 3.2 kilo­meters away from barrio Calais.

Restating the consistent
ruling of this Court in many decisions, it said in a relatively
recent case:

“Alibi as a defense must be received with utmost caution because of the facility with which
it maybe concocted and fabricated, and
in order that such defense may be successful, it must be proved by convincing
evidence which reasonably satisfies the court of the truth of such defense, and
unless it meets this requirement, it can­not prevail against the clear and
positive identification of the accused by witnesses of the prosecution who had
no motive to testify against the persons charged of a crime; although, it is
also settled rule that it is not on the weakness of the defense of alibi that
his conviction lies.  It (still) behooves
the prosecution to show his guilt beyond the shadow of a doubt.” (People
vs. Capito, et al., L-24466, March 19, 1968; 22 SCRA
1130)

Everything considered,
there is no doubt in our mind that the positive identification of herein
defendants by the three eye-witnesses has not been shaken.

The crime committed by
the defendants is robbery with homicide as defined and penalized under
Article 294 (1) of the Revised Penal Code.^[1]
In automatically imposing the death penalty, the trial court appears to be
under the impression that in every case of robbery with homicide committed by a
band, with the perpetrators thereof armed with unlicensed firearms, there is no
alternative but to impose the death penalty. 
Although the dispositive portion of this
decision is actually an affirmance of the decision
under review, we feel that a correction of the court a quo‘s view is in order.  It is not
accurate to say, as the trial court did, that because the crime of robbery with
homicide is committed by a band whose members are armed with unlicensed firearms, there
is no more need to inquire into the attendant aggravating and mitigating
circumstances in order to determine the penalty imposable and that the trial
court has no choice but to impose the supreme penalty.  This view fails to take note of the fact that
Art. 295 merely provides, inter alia,
that it is only when the offenses described in subdivisions 3, 4 and 5 of Art. 294 are committed by a band that the
proper penalties in their maximum periods should be imposed.  In People vs. Apduhan,
No. L-19491, August 30, 1968, 24 SCRA 798, this Court, speaking through Mr.
Justice Castro, said:  “x x x the cir­cumstance
of band is therefore qualifying only in robbery punished by subdivisions 3, 4
and 5 of Art. 294.  Consequent­ly, Art.
295 is inapplicable to robbery with homicide, rape, intentional mutilation, and
lesiones graves result­ing in insanity, imbecility, impotency or blindness.  If the foregoing classes of robbery which are
described in Art. 294(1) and (2) are perpetrated by a band, they would not be
punishable under Art. 295, but then cuadrilla would
be generic aggravating under Art. 14 of the Code.  Hence, with the present wording of Art. 295
there is no crime as ‘robbery with homicide in band.’ If robbery
with homicide is committed by a band, the indictable offense would still be
denominated as ‘robbery with homicide’ under Art. 294(1), but the element of
band, as stated above, would be appreciated as an ordinary aggravating circums­tance.”

Even with the generic aggravating circumstance of band alone,
there being no mitigating circumstance to offset the same, the imposition of
the death penalty is in accordance with law. 
But then the offense in this case was likewise attended by the circumstances of “dwelling,”
treachery and premeditation, this last being evident from the fact that the
defendants must have planned the
robbery beforehand, as indicated by their
coming as an armed group and by the manner in which they entered the store.

Counsel de oficio submits
that the defendants belong to the cultural minorities and that this should be considered as a mitigating
circumstance in their favor.  This fact
cannot conceivably reduce, from the subjective point of view, the
defendants’ aware­ness of the gravity of their offense, for robbery and killing
are by their very nature just as wrong to the ignorant as they are to the
enlightened.  In any event even if considered as mitigating, the circumstance referred to would be
insufficient to offset the
aggravating circums­tances present.

Wherefore, with the only modification that the
indemnity due to the heirs of the deceased Romeo Yuayan
is increased from P6,000.00 to P12,000.00, the
decision appealed from is affirmed, with costs.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Fernando, and Teehankee, JJ., concur.

Barredo, J., did not take part.

^[1]
Both the provincial fiscal and the trial court designated the offense committed
as “robbery in band with homicide” as defined and penalized under
Art. 294(1) in relation to Art. 296 of the Revised Penal Code.  This inaccurate designation of the offense
led the trial court to automatically impose the death penalty without
appreciating any ag­gravating or mitigating circumstances which might have
attended the commission of the deed, apparently relying solely upon the provisions
of Arts. 295 and 296 of the Re­vised Penal Code to the effect that where
robbery is committed by a band, the offender(s) shall be punished by the
maximum period of the proper penalties and that when any of the arms
used in the commission of the offense be an unlicensed firearm, the penalty to
be imposed upon all the malefactors shall be the maximum of the corresponding
penalty provided by law.