THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. CARLITO MAGBANUA Y PRECINILLO, BEN SANTAMINA Y SANGULLA AND ERNESTO PINGGO Y GUIALA, ACCUSED-APPELLANTS.

CARLITO MAGBANUA, BEN SANTAMINA and ERNESTO PINGGO were accused of
murder in Criminal Case No. 1587 of the defunct Court of First Instance
of Zamboanga City. The infor­mation against the accused reads:

“That on or about December 11, 1976, in the City of Zamboanga,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring and confederating together, mutually
aiding and assisting one another, taking advantage of the night and of
their superior strength to better accom­plish their purpose, grab from
the possession of CIC BASIRI ASIMUDIN, a member of the 462nd PC Company
stationed at PC Detachment in Recodo, this City, the latter’s Service
Pistol cal. 45 and once the above-named accused had in their possession
the aforesaid pistol, with intent to kill, did then and there, wilfully,
unlaw­fully and feloniously, assault, attack and shoot with the same
pistol at the person of said Basiri Asimudin, thereby inflicting upon
the latter’s person mortal wounds which caused his death.” (Expediente, p. 1.)

In a short and well-written decision, Judge Abdulwahid A. Bidin, now
associate justice of the Intermediate Appellate Court, found the accused
guilty as charged and sentenced “each and everyone of them to suffer
the penalty of reclusion perpetua, to jointly and solidarily
indem­nify the heirs of the deceased Basini Asimuddin in the amount of
P12,000.00 and to pay the cost.” (Idem, p. 95.)

All of the three appealed to this Court. After the case had been
submitted for decision, BEN SANTAMINA filed an Urgent Motion to Withdraw
Appeal. The motion was granted on February 15, 1984, for which reason
only the appeal of MAGBANUA and PINGGO remains to be considered.

The facts, as found by the trial court, are as follows:

“Accused Carlito Magbanua, Ben Santamina and Ernesto Pinggo are
fishermen and crew members of the Mizpah IV, a fishing boat which was on
dry dock at Recodo, this City, for about five months prior to the
incident which gave rise to the filing of the information in the
above-entitled case. In the evening of December 11, 1976 at about 7:00
o’clock, the three accused went to the store of Leny Rodriguez at
Recodo, this City, and bought a bottle of special brandy which they
drank on a bench outside of the store. The store was lighted with a
petromax lamp. Later that evening Albert Sala who resides nearby,
arrived at the same store. Albert Sala ordered for a bottle of coke
which he drank inside the store. Sometime later Basiri Asimuddin, a
soldier assigned to the PC Detachment at Recodo, arrived at the store.
Basiri Asimuddin asked also for a bottle of coke. Basiri Asimuddin was
in civilian clothes and had a .45 cal. pistol tucked to his left waist.
While Basiri Asimuddin was standing outside of the store drinking his
bottle of coke, accused Carlito Magbanua suddenly embraced him from
behind as accused Ernesto Pinggo held his (Asimuddin’s) hands. Then
Ernesto Pinggo took the pistol from the left waist of Basiri Asimuddin
and gave the pistol to accused Ben Santamina. While Ernesto Pinggo and
Carlito Magbanua were holding the hands of Basiri Asimuddin, Ben
Santamina fired three shots at Basiri Asimuddin. On the second shot
Basiri Asimuddin fell and as he lay on the ground, Ben Santamina fired
another shot. Then the three, Ben Santamina, Carlito Magbanua and
Ernesto Pinggo, fled towards the bushes with Ben Santamina taking the
pistol along with him. Later soldiers from the PC Detachment at Recodo
arrived and brought Basiri Asimuddin to the Brent Hospital but Basiri
Asimuddin expired before he was operated on, as certified by Dr. Jose
Generoso and evidenced by the death certificate issued by him (Exhibit
“B”). When examined early the following morning by Dr. Rodolfo
Balmoria, a medico legal officer of the Philippine Constabulary at the
Funeraria Villa, the deceased Basiri Asimuddin was found to have
sustained three gun shot wounds, two of which were entrance wounds while
the other was an exit wound, as follows:

‘Post mortem Findings:

‘1. Gunshot wound, point of entry, lateral left lumbar region,
directed laterally to the right, measuring 0.8 cm x 0.8, 3.5 cm from the
anterior midline, contusion collar measuring 0. 3 cm posterior, 0.2 cm
inferior and superior, 0.1 cm anterior with tatooing or smudging around
the gunshot wound of entrance.

‘2. Gunshot wound, point of entry, lateral left iliac region,
directed laterally to the right, measuring 0.9 cm x 0.8, 16 cm from the
anterior midline, contusion collar measuring 0.3 cm posterior, 0.2 cm
inferior and superior, 0.1 cm anterior with tatooing or smudging around
the gunshot wound of entrance.

‘3. Gunshot wound of exit, right lumbar region, measuring 1 cm x
1.8, 14 cm from the anterior midline.’ (See medico legal necropsy
report, Exhibit “A”).

Early the following morning, the three accused were picked up and
brought first to the PC Detachment and later, to the PC Headquarters at
Cawa-Cawa Boulevard where they were interrogated. The three accused
denied participation in the killing of Basiri Asimuddin. They were then
taken to the PC Crime Laboratory where a parafin examination was
performed on them by Mrs. Athena Anderson, a forensic chemist of the PC
Crime Laboratory, Zamboanga City. The examination showed that the hands
of accused Ben Santamina and Carlito Magbanua were found positive for
presence of nitrates or gun powder residue while the hands of Ernesto
Pinggo yielded nega­tive results, per Exhibit “C”.” (Idem, pp. 91-92.)

The only issue raised in the trial court and in this appeal is the
credibility of witnesses. The prosecution presented three witnesses to
the shooting, namely: Rahma Appang, Macrim Lukman and Albert Sala.
Leny Rodriguez who owned the store which was patronized by the accused
and the deceased had transferred her residence at the time of the trial.
Contradicting the said witnesses were the accused themselves. Their
version is “that at about 7:00 P.M. of December 11, 1976 they went down
from their fishing boat which was then dry docked at Recodo for the past
five months to buy lemon for their ‘kilawin’, leaving their vessel
unguarded. Upon arrival, Ben Santamina went to the store to buy the
lemon while Carlito Magbanua and Ernesto Pinggo waited near the road
side infront of the store. After Ben Santamina bought the lemon and was
returning towards his companions, another man arrived and fired three
times at the man who was standing near the store. The man fired at
fell. Then the one who fired approached the victim and picked up
something from the fallen man and ran away, while they (the three
accused) just stood in the place where they were and did not run away
nor did they help the fallen man. They do not know who the assailant
and victim were.” (Idem, pp. 92-93.)

The appellants impugn the credibility of Rahma Appang and Macrim Lukman.
They claim that these were unreliable witnesses because they gave
contradictory statements about the shooting.

Appang and Lukman did make contradictory statements.

Appang executed an affidavit on December 12, 1976 (Exhibit 1) where she
stated that she saw ERNING grab the pistol of ASIMUDDIN and that the
former shot the latter four times. However, Appang testified during the
trial that it was Ben Santamina who shot Asimuddin.

Lukman also executed an affidavit on December 12, 1976 (Exhibit 4) where
he stated that he saw ERNING reach for the gun of ASIMUDDIN and that
the former shot the latter three times. However, during the trial
Lukman, like Appang, declared that it was Santamina who shot Asimuddin.

We have examined Exhibits 1 and 4 carefully and we note the following:

1. Both affidavits were executed on December 12, 1976.

2. Both affidavits were in the form of question and answer and in both the interrogator was Policeman Rogelio P. Carpio.

3. Both affidavits were taken in the investigating room of the 462nd PC Company.

Except for minor variants the affidavits are strikingly similar in
respect of the shooting which leads Us to believe that they were more
the handiwork of the interrogator. But this does not mean that the
cre­dibility of Appang and Lukman has been impaired. For as the People
correctly states:

“The fact that Appang and Lukman contradicted their previous
statements does not neces­sarily imply that their testimony in court
cannot be relied upon. The previous statements mentioned were taken ex parte
without the benefit of a formal inquiry. This Honorable Court has
always been guarded in binding the witness to such statements. These
are ‘almost always incomplete and often inaccurate, sometimes from
partial suggestions and sometimes from the want of suggestions and
inquiries, without the aid of which the witness may be unable to recall
the connected collateral cir­cumstances necessary for the correction of
the first suggestions of his memory, and for his accurate recollection
of all that belongs to the subject.’ (People v. Pacala, 58 SCRA 370, 379
citing Moore on Facts, 1094-1095 and People v. Tan, et al. 89 Phil.
337, 341)”

x x x                   x x x                   x x x

“It has been held that the mere fact that a witness declares to a
certain set of facts and circums­tances during a preliminary examination
especially where it was not conducted with that degree of impar­tiality
which should characterize such proceedings, and to another set of facts
and circumstances upon trial of the case, does not necessarily
discredit his testimony nor destroy it, if such contradictions are
satisfactorily explained to the court as in the case at bar. (People v.
Rocca, 3 SCRA 828; U.S. v. Lazaro, 34 Phil. 871; U.S. v. Briones, 28
Phil. 367; U.S. v. Magtibay, 17 Phil. 417).” (Brief, pp. 4, 6.)

And the contradictions can easily be explained. As stated above, the
answers in both exhibits appear to have been suggested by the
interro­gator but in another situation where a judge was solemnly
presiding the true facts emerged.

The decision of the trial court is also assailed on the ground “that it
was accused-appellant Ben Santamina who fired the gun simply on the
presence of gunpowder (nitrates) found in his person based on the
parafin test.” (Brief, p. 34.) This contention is erroneous. The trial
court based its finding not only on the fact that Santamina was positive
for gunpowder burns but also on the positive testimony of witnesses.

The appellants’ version of the incident is too crude to be con­vincing.
No person corroborated their story which coincided in many details so
that it has all the earmarks of being contrived.

WHEREFORE, the judgment sentencing Carlito Magbanua and Ernesto Pinggo to suffer reclusion perpetua
is affirmed but modified in respect of the indemnity which is increased
to Thirty Thousand (P30,000.00) Pesos. Costs against the appellants.

SO ORDERED.

Aquino, Acting C.J., (Acting Chairman), Concepcion, Jr., Guerrero, De Castro and Escolin, JJ., concur.

Makasiar, J., (Chairman), on leave.