THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. HAMID AMBIH Y KADIL, ACCUSED-APPELLANT.

HAMID AMBIH y KADIL, after his conviction by the trial court for
“pushing” four (4) newspaper-wrapped packets of dried marijuana
leaves, is now before us insisting that he was a mere innocent bystander, a
fall-guy, whom the NARCOM agents arrested when their real
“quarry” was able to run away and elude arrest.

The prosecution presented four (4) witnesses: Sgt. Amos Foncardas, Sgt. Bonifacio Morados
and M/Sgt. Mohammad Sali Mihasun, of the Narcotics Command, and Forensic
Chemist Athena Eliza Anderson of the PC Crime Laboratory, all stationed in
Zamboanga City.

On 17 April 1989, at around 10:00 o’clock in the morning, Sgt.
Foncardas received confidential report that a certain “Kadil” was
engaged in the illicit trade of marijuana in the vicinity of Sutterville,
Zamboanga City.^[1]
To verify the information, he dispatched Sgt. Morados accompanied by the
informant to check on the suspected drug pusher. After thirty (30) minutes, Sgt. Morados confirmed the
report. Sgt. Foncardas then organized
the buy-bust operation, designated Sgt. Morados as the poseur-buyer, and handed
him five (5) marked ten-peso bills which were given by NARCOM Chief
Investigator M/Sgt. Mihasun.^[2] The
entrapment team, composed of Team Leader Sgt. Foncardas, Sgt. Morados and Sgt. Manuel Alarcon, proceeded to
Sutterville on board two (2) motorcycles.

Upon seeing their
suspect, now the accused, Sgt. Morados approached him while Sgts. Foncardas and
Alarcon maintained their distance. Sgt.
Morados asked the accused, “mayroon ba tayo diyan?” The latter
replied, “mayroon ako ditong marijuana sa halagang P50.00.” Sgt.
Morados then said: “Bilhin ko na
iyan.” The accused then took out from the pocket of his pants four (4)
packets wrapped in newspaper which he handed to Sgt. Morados who, after
ascertaining them to be marijuana, paid the pusher with the five (5) marked
ten-peso bills. After sensing that the
accused might have noticed the presence of the NARCOM operatives, Sgt. Morados
immediately grabbed the accused by the hand and placed him under arrest Sgts.
Foncardas and Alarcon moved in to assist Sgt. Morados, and brought the accused
to the NARCOM Headquarters where he, together with the marked money and
the four (4) packets of dried marijuana leaves, was turned over to Chief
Investigator M/Sgt. Mihasun who personally went to the PC Crime Laboratory, Recom 9,
Zamboanga City, to submit the four (4) packets of the prohibited stuff
for examination. Forensic Chemist Athena Eliza
Anderson found each packet to weigh
five (5) grams and “gave POSITIVE
results to the tests for the presence of marijuana, a prohibited drug.”^[3]

Accused Hamid Ambih, a 48-year old carpenter has a different
story to tell. Testifying in Tausug, he
recounted that he was hired by PC Captain Arosin Kañga and his wife, Hadja, to
fix their kitchen and comfort room. As
previously agreed upon, at around 10:00 o’clock in the morning of 17 April
1989, he together with his friend, Alberto Pantoha, waited along the road at
the entrance of the Lakian compound in
Sutterville, Zamboanga City, for the truck carrying the materials
purchased by Capt. Kañga to arrive. Aside from him and Pantoha, there
were two (2) persons sitting nearby whom he did not know. It was during that time that he was arrested
at gun-point by six (6) NARCOM
agents for no apparent reason, handcuffed and taken to the police headquarters.^[4]

The defense presented Alberto Pantoha who corroborated the
testimony of Ambih by averring that while he
and Ambih were waiting for the truck ferrying the materials, which truck
he and Ambih would guide to the house of
Capt. Kanga, two (2) armed persons appeared from nowhere. The people around them scampered away, leaving behind the “’lukut-lukot’ or
the marijuana (which) fell to the ground,”^[5] near
the place where Ambih was standing. Pantoha, who feared the armed persons, likewise ran, leaving Ambih
alone. The armed persons, identifying
themselves to be NARCOM agents, apprehended
Ambih. Pantoha swore that nothing of
the prohibited stuff was found in the person of Ambih at the time of his
arrest.

Hadja Napisa Kañga, wife of PC Captain Kañga, was also presented
by the defense. She said that it was she who hired Ambih and Pantoha to construct a toilet and a dirty
kitchen, and that they were indeed instructed to wait along the road in Sutterville for the
delivery truck. She added that she had
known Ambih for a long time and that he was a good and religious person.^[6]

On 25 March 1991, the Regional Trial Court of Zamboanga City, 9th
Judicial Region, Br. 15,^[7] giving more credence to the testimony
of the prosecution witnesses, found accused Hamid Ambih y Kadil guilty of violation of Sec. 4,
Art. II of R. A. No. 6425, as amended, and sentenced him to life imprisonment
and to pay a fine of P20,000.00. The
accused appealed.

The conviction of Hamid Ambih y Kadil should be reversed and set
aside.

We take exception
to the finding of the court a quo that
the testimony of Sgt. Morados was clear and straightforward, and corroborated
in all material points by Sgt. Foncardas.^[8]

The trial court found that Team Leader Sgt. Foncardas, after
being given three (3) ten-peso bills by M/Sgt. Mihasun, added two (2) ten-peso
bills to complete the marked money for the entrapment.^[9] But, from the testimony of Sgt.
Foncardas himself, it appears that he received all the “5 pieces of P10.00
bills, a total of P50.00” from M/Sgt. Mihasun.^[10]
Of course, this was contradicted by M/Sgt. Mihasun who
testified that he only gave Sgt. Foncardas three (3) ten-peso bills.^[11] The inconsistency was rectified by Sgt. Foncardas upon being recalled to
the witness stand five months later.^[12]
While this makes the version of the prosecution less convincing, it also takes
its toll on the trial court which failed to note the inconsistency and
vacillations of the prosecution witness. If the trial court failed to note this simple fact, We cannot see how it
could have made a clear finding that the testimony of the prosecution witnesses
was “entitled to full faith and credit.”^[13]

This is not a minor inconsistency which we can consider as a
badge of truth coming from an uncoached witness. It must be remembered that it was Team Leader, Sgt. Foncardas who organized the
buy-bust operation and who reportedly supplied the two (2) ten-peso bills to
complete the marked money to be used in their ensuing operation. It disturbs us why he initially declared in
open court that he received all five (5) ten-peso bills from M/Sgt. Mihasun,
only to change his testimony some five (5) months later. While this fact does not concern the actual
exchange of the prohibited drug, it nonetheless affects the entire case of the prosecution
when the pieces of evidence are joined together.

Moreover, according to the trial court, “Sgt. Amos Foncardas
received information from a confidential informant that a certain ‘Ambih’ of Sutterville, Zamboanga City,
was engaged in selling marijuana x x x x”^[14] The
records show differently. Sgt.
Foncardas testified that it was not a certain “Ambih” but a certain
“Kadil” who was said to have been engaged in illicit trade of drugs.^[15]

We also find it strangely coincidental that the amount demanded
by the accused for the four (4) packets of marijuana would be the exact
amount of the marked money brought by the poseur-buyer. It boggles the mind how the “buy-bust
team” prior to the actual “buy-bust operation” could have
figured out beforehand “the operation (to be) worth P50.00,”^[16]
and in fact shelled out another two (2) ten-peso bills granting this to be
true, if only to come up with the exact amount of P50.00 in marked money. And true enough, as shown by the alleged
conversation that took place the accused allegedly offered marijuana worth exactly
P50.00^[17]

“Q    x
x x x what did you say in Tagalog to the suspect?

“A    I
approached the suspect in a friendly manner and I told him. ‘Meron ba tayo diyan?’

“Q    What
was the response if any?

“A    ‘Mayroon
ako dito sa halagang P50.00.’”

Unlike in other buy-bust operations where the apprehending team
is unaware of the exact value of the illegal drug the suspected peddler would
be going to sell and thus has to play it by ear, it appears here that the
entrapment team had already pre-determined the worth of the goods to be sold by
preparing beforehand the precise amount it had to pay.

Thus, as we have
observed in many occasions, oftentime to
our dismay, while a buy-bust operation is a recognized means of
entrapment for the apprehension
of drug pushers,^[18]
it does not always commend itself
as the most reliable way to go after violators
of the Dangerous Drugs Act as it is susceptible to mistake as well as to
harassment, extortion and abuse.^[19]

In People v. Ale,^[20] the Court cautioned that –

“x x x x we cannot close our eyes to the many reports of
evidence being planted on unwary persons either for extorting money or exacting
personal vengeance. By the very nature
of anti-narcotics operations, the need for entrapment procedures, the use of
shady characters as informants, the ease with which sticks of marijuana or
grams of heroin can be planted in pockets or hands of unsuspecting provincial
hicks, and the secrecy that
inevitably shrouds all drug deals, the possibility of abuse is great. Courts must also be extra vigilant in trying drug charges lest an
innocent person is made to suffer
the usually severe penalties for drug offenses.”

Indeed, while the lone defense of the accused that he was the
victim of a frame-up is easily
fabricated, this claim assumes importance when faced with the rather shaky
nature of the prosecution evidence. It is well to remember that the
prosecution must rely, not on the weakness of the defense evidence, but rather on its own proof which must be strong enough to convince this
Court that the prisoner in the dock deserves to be punished.^[21]
The constitutional presumption is that the accused is innocent even if his
defense is weak as long as the prosecution is not strong enough to convict him.^[22]

In fine, we find the evidence for the prosecution grossly insufficient
to induce that moral certitude exacted by the fundamental law to prove the
guilt of the accused. Verily, the
freedom of the accused may only be forfeited if that requisite standard of
proof beyond reasonable doubt is shown to lie by the prosecution.

WHEREFORE, the appealed judgment of conviction is REVERSED
and SET ASIDE. Accused HAMID AMBIH Y
KADIL is ACQUITTED
on reasonable doubt.

SO ORDERED.

Cruz, (Chairman), Griño-Aquino, Davide, Jr., and Quiason, JJ., concur.

^[1]
TSN, 24 October 1989, p. 12.

^[2]
Id., p. 14.

^[3]
Chemistry Report No. D-036-89
signed by Forensic Chemist Athena Eliza Anderson.

^[4]
TSN, 4 April 1990, pp. 2, 4, 7-10.

^[5]
TSN, 30 May 1990, p. 9.

^[6]
Id., pp. 20-22.

^[7]
Penned by Presiding Judge Jaime T.
Hamoy.

^[8]
Decision, RTC of Zamboanga City, Br. 15.

^[9]
Id, pp. 2-3.

^[10]
TSN, 24 October 1989, p. 14.

^[11]
TSN, 30 January 1990, pp. 5, 8-9;

^[12]
TSN, 15 February 1990, pp. 10-11.

^[13]
See Note 8, p. 20.

^[14]
Id, p. 2.

^[15]
TSN, 24 October 1989, p. 12.

^[16]
TSN, 30 January 1990, p. 8.

^[17]
TSN, 8 January 1990, pp. 6-7.

^[18]
People v. Castiller, G. R. No.
87783, 6 August 1990, 188 SCRA 376; People v. Ramos, G. R. No. 88301, 28 October 1991, 203 SCRA 237.

^[19]
People v. Fernando, G.R. No. 66947, 24 October 1986, 145 SCRA 151; People v. Lati, G.R. No. 70393, 17 April 1990, 184 SCRA 336; People v.
Yutuc, G.R. No. 82590, 26 July 1990, 188 SCRA 1.

^[20]
G. R. No. 70998, 14 October 1986, 145 SCRA 50, 58-59.

^[21]
Ang v. Sandiganbayan, G. R. No.
91886, 20 May 1991, 197 SCRA 262.

^[22]
People v. Aminnudin, G. R.
No. 74869, 6 July 1988, 163 SCRA 402.