THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. AKMAD MARONG AND ABDURAJIK NADUWA, DEFENDANTS WHOSE DEATH SENTENCES ARE UNDER REVIEW.

This is a case of kidnapping for ransom.  At about nine o’clock in the evening of July
7, 1979, seven rebels or terrorists, members of the Moro National Liberation
Front, armed with high-powered firearms and using two pumpboats,
stealthily boarded the MV Minerva I, a fishing boat anchored at the shore­line
between Sitios Kalang Salamat and Sitio Bojelebong, municipality of Tipo-Tipo,
Basilan.

The rebels at gunpoint took into custody Benjamin de la Rosa, the
captain of the fishing boat or launch, and two security guards, Abdurasul Mannan, 20, and Teddy
P. Tarabasal (Amaikaidal Pawaki), 21, who were asleep, and took them to the two pumpboats.  The
captives were brought by the rebels to Sitio Bucalao, Tipo-Tipo and delivered
to Palsarip (Far Sharif),
the rebel zone com­mander in that place.

They were detained in a hut or camarin
for thirteen days or until the evening of July 20, 1979, when a ransom of twenty thousand pesos paid
by Hadji Wahab Jalani was delivered to Palsarip
who thereupon released the three kidnapped victims to Hadji
Salam Balamo, one of the
nego­tiators.  Balamo
took the captives to Sitio Banah, Tipo-Tipo where they were set free.

The fishing boat was operated by Hadji Jalani, an affluent businessman from Sitio
Banah who functioned as the overall commander of the
special para-military force and the Integrated Civil Home
Defense Force in that locality.  He had
hired Mannan and Tarabasal,
members of the special para-military force, to guard
the fishing boat.  On July 6, 1979 or one
day before the kidnapping, the two guards were ferried from Sitio
Banah to the fishing boat by Abdurajik
Naduwa, 26, a resident of Sitio
Kalang Salamat and an
operator of a pumpboat who was employed by Hadji Jalani.

Naduwa is the nephew of Akmad Marong, 32, a fisherman
residing at Sitio Kalang Salamat, a former MNLF member, who was the commander of the
Integrated Civil Home Defense Force in that island.

In the morning of July 8, 1979 (about twelve hours after the
kidnapping) both ICHDF commanders Hadji Jalani and Marong conferred with
Lieutenant Conrado V. Bermudez, the commander of C
company of the 41st Infantry Batallion stationed at Sitio Bojelebong presumably about
the kidnapping (Exh. F).

The seven terrorists were identified as Utoh
Yakan, Talakawa Yakan, Gamal Abirin,
Saad Abirin, Muctar Eladji, Aladdin Moro and Condah alias Commander Fernandez.  They guarded the kidnapped victims during the
thirteen-day period of their captivity in Sitio Bucalao.

On October 2, 1979,
the provincial fiscal filed against Marong and Naduwa and the eight rebels (including Palsarip)
an information for kidnapping for ransom. 
Only Marong and Naduwa
were arrested and tried.

Question:  Did Marong, with his nephew Naduwa’s
assistance, mastermind the kidnapping for ransom?

The prosecution contends that Marong
and Naduwa conspired with Palsarip
and the seven terrorists to perpetrate the kidnapping for ransom.  Conrado D. Fran­cisco,
34, a sergeant in the police force of Isabela, Basilan (not Tipo-Tipo where the
crime was committed) was the architect of the case for the prosecution.  He was deputed by the fiscal to investigate
the case.  On September 1 and 3, 1979 or
more than fifty days after the incident, he secured the affidavits of Barahim Halim and the two guards,
Mannan and Tarabasal,
linking Marong and Naduwa
to the kidnapping (Exh. A to D).

Note that Lieutenant Bermudez who also investigated the case and
got the verbal statements of the kidnapped victims soon after they were
released, did not implicate Marong and Naduwa.

Mannan and Tarabasal
declared in their affidavits and testimonies that in the afternoon of July 6, 1979 while they were riding in
Naduwa’s pumpboat from Sitio Banah, the boat anchored at
Kalang Salamat.  Naduwa landed and
went to his house near the beach.

On that occasion, Marong and three
rebels named Gamal Abirin, Muctar (a close relative of Naduwa)
and Hadjan Yakan emerged
from Naduwa’s house. 
When the two guards pointed their rifles at the three rebels, Marong allegedly told them not to harm the three terrorists
because they were under “surrender negotiation”.

To show that Marong and Naduwa conspired with the seven rebels, the prosecution
presented as witness Halim, 36, a resident of Banah and a conductor in the jeepney
owned by Hadji Jalani’s
grandson.

Halim declared in his affidavit (Exh. A) and testimony that in the evening of July 7, 1979
he decided to fish for squid in the waters near Kalang
Salamat which is about a kilometer away from Banah.  He rode in
his vinta and reached Kalang
Salamat at about seven-thirty.  He walked to Marong’s
house which was made of bamboo and nipa.  He intended to secure Marong’s
permission to fish in the waters of Kalang Salamat.

On nearing the house, he noticed that there were many persons
inside it.  Instead of entering the door,
he allegedly peeped through the wall and, by some unusual coincidence, it was
at that very moment when he heard Marong directing
the seven rebels already named to board two pumpboats,
kidnap the captain on the fishing boat and kill the two security guards
and then proceed to Sitio Bucalao
where Palsarip was waiting (16 tsn).  Naduwa was present
at that conference.

After hearing that directive, Halim
left the place, boarded his vinta, proceeded to Sitio Magbe and slept in his
cousin’s house in that place.  He could
not return to Banah because it was curfew time
already.

The two security guards also testified that on July 8, 1979 or at noontime of the day
following the kidnapping, Marong and Naduwa appeared at Sitio Bucalao.  Marong gave money to Palsarip who
complimented him on the success of the kidnapping.  Marong promised to
return to bring the ransom money.  That
meeting between Marong and Palsarip
took place within the sight and hearing of the two security guards and De la
Rosa.

The two guards also testified that it was Marong
who in the evening of July 20, 1979
gave the ransom money to Palsarip.  As a result, the captives were released and
delivered to Hadji Balamo.

Marong, 34, testified that in the
evening of July 7, 1979, he
was fishing.  At that time, no pumpboat docked at Kalang Salamat.  He said that
the testimonies of Mannan, Tarabasal
and Halim were not true.  He admitted that on July 8, 1979 he and Naduwa
went to Sitio Banah but he
did so in the company of some teachers and children.  Then, he went to see Captain Bermudez at Bojelebong where he learned that De la Rosa and the two
guards were kidnapped.  He admitted that
he is acquainted with Palsarip.

He did not know why Mannan and Tarabasal testified against him.  He had a misunderstanding with Hadji Jalani regarding a fish
corral but the trouble was patched up. 
He said that Halim was a minion (bataan) of Hadji Jalani.

Abdurahman Balintin,
a fisherman, rebutted the testimony that Marong had
intervened in collecting the ransom money by declaring that the twenty thousand
pesos were given to him (Balintin) and that he,
together with Hadjis Salami, Gapur,
and Balamo and two persons named Atti
and Pawaki delivered that amount to Palsarip, and then Balintin
delivered to Hadji Jalani
the kidnapped victims.

Accused Naduwa, 27, admitted that he
was hired by Hadji Jalani
on July 5, 1979 to take the
two security guards to the fishing boat. 
The next morning he brought the two guards to Banah
and in the afternoon he took them to the boat.

He testified that on July
7, 1979 he did not go to the fishing boat because he was on guard
duty in the tower near Marong’s house.  He denied having gone to Bucalao
with Marong to talk with Palsarip.  He explained that he was implicated in the
case because he was Marong’s nephew.

Judge Jainal D. Rasul
rejected the alibis and denials of Marong and Naduwa and gave credence to the testimonies of Halim, Mannan, Tarabasal and Sergeant Francisco.  He convicted Marong
and Naduwa of kidnapping for ransom and sentenced
them to death.  No civil liability was
imposed.  The case was elevated to this
Court for review of the death penalty.

Counsel de oficio
contends that the trial court erred in relying on Halim’s
testimony, in disregarding the alibis of Marong and Naduwa, in not taking into account the alleged suspicious
circumstances surrounding the investigation and prosecution of the case and in
not acquitting the two accused on the ground of reasonable doubt.

Our study of the record* convinces us that the judgment of
conviction cannot be sustained.  The
following gaps, deficiencies and improbabilities in the evidence of the
prosecution engender reasonable doubt as to the guilt of Marong
and Naduwa:

1. Halim’s version is that at the moment
when he allegedly peeped inside Marong’s humble abode
(made of nipa and woven bamboo as walls, as described
by Halim in his affidavit) he heard Marong saying: “We are going to board on two pumpboats and proceed to the Minerva I (Jalani’s fishing boat) and get the captain of the boat and kill
his security guards, Abdurasul Mannan
and Teddy Tarabasal and then proceed to Bucalao because Palsarip is
waiting there.” (This version is different from what Halim
stated in his affidavit, Exhibit A).

That incriminatory directive was the only matter covered by Halim’s testimony on direct examination.  He left immediately after hearing those
words.  To a seasoned trial lawyer, that
testimony instantly evokes incredulity because of its improbability.  It appears to be a concocted story.

It is just too much of a coincidence that at the precise moment
when Halim went near Marong’s
house Halim chanced to eavesdrop on Marong’s alleged utterance regarding the kidnapping.  Halim’s story is
not credible because it does not accord with the common experience of
mankind.  Marong’s
small house (Exh. 2) could not have accommodated s e v e n rebels in addition to Marong and Naduwa, not to mention
Marong’s wife and children.  Halim’s approach to
Marong’s house and his alleged act of peeping through
the wall could not have passed unnoticed by the persons inside the house.  They would have sensed his presence
immediately considering his close propinquity to them.

Another circumstance
rendering Halim’s version improbable is that the
kidnapping, as actually executed, was not in conformity with Marong’s alleged instruction to the seven terrorists.  Marong and Naduwa did not go with the rebels, although it was assumed
in his directive that he and Naduwa would accompany
the terrorists.  Moreover, contrary to Marong’s alleged instruction, the two security guards were
not killed.

2. The prosecution’s version that Marong
recklessly threw all caution to the winds when he talked twice with Palsarip in the presence of the three kidnapped victims is
likewise not quite believable.  No
sensible man perpetrating a grave offense would overexpose himself as Marong did in this case, if the prosecution’s version is to
be believed.  Marong
would have known that after the three kidnapped victims had been set free they
would surely testify against him and, therefore, it would be suicidal for him
to deliver the ransom money in the presence of the three victims.

3. Hadji Jalani,
the owner of the fishing boat and the payor of the
ransom money, and De la Rosa, the captain of the boat, should have testified on
the alleged participation of Marong in the
kidnapping.  They did not testify.  Their nonavailability
as wit­nesses was not explained by the prosecution.

The possibility that Marong, who as
ICHDF commander was on the government’s side, confabulated with the rebels, cannot
be ruled out but the evidence that he actually did so in this case is not
convincing and trustworthy.

WHEREFORE, the trial court’s judgment of conviction is set
aside.  The two accused are acquitted on
the ground that the prosecution’s evidence is insuffi­cient to prove their
guilt.  Costs de oficio.

SO ORDERED.

Fernando, C.J., Makasiar, Guerrero, Abad Santos, De
Castro, Melencio-Herrera, Plana,
Escolin, Vasquez, Relova, and Gutierrez, Jr., JJ., concur.

Teehankee and Concepcion, Jr., JJ., no part.

*
The Assistant Solicitor General’s brief
contains a counter-statement of facts which makes no references to the pages of
the record, as required in section 17(a), Rule 46, in relation to section 7,
Rule 124 of the Rules of Court.  That is
a deviation from the practice of the Solicitor General’s Office.  That deviation cannot be tolerated.