LEO M. FLORES, MODESTO L. LICAROS AND MARIO LOPEZ VITO, PETITIONERS, VS. THE SANDIGANBAYAN (FIRST DIVISION), THE PEOPLE OF THE PHILIPPINES AND ABELARDO B. LICAROS, RESPONDENTS.

Petition for certiorari and prohibition seeking (1) to
nullify the order, dated February 11, 1983, of respondent Sandiganbayan
(First Division) in Criminal Case No. 6672, entitled “People vs. Modesto Licaros y Lacson, et al.,”
ordering the discharge upon motion of the Tanodbayan,
of private respondent Abelardo B. Licaros
from the information for robbery to be utilized as a government witness and the
order, dated March 21, 1983, denying the motion for reconsideration; and (2) to
enjoin respondents from presenting him as state witness.

On June 5, 1982,
the Legaspi City Branch of the Central Bank of the Philippines
was robbed and divested of cash amounting to P19,731,320.00.

On June 9, 1982,
a sizable portion of the money was recovered at the Home
Savings Bank & Trust Company Building
in Intramuros, Manila
after a raid by the police authorities.

On July 6, 1982, the Tanodbayan filed
an information with the Sandiganbayan charging
Modesto Licaros, Leo Flores, Ramon Dolor, Glicerio Balansin, Rolando Quejada, Pio Edgardo
Flores, Mario Lopez Vito and Rogelio dela Cruz, as
principals, and herein private respondent Abelardo B.
Licaros, as accessory, with the crime of robbery
committed on or about June 5 and 6, 1982 at the Legaspi
City Branch of the Central Bank of the Philippines in which P19,731,320.00 was taken therefrom.
The National Bureau of Investigation which investigated the case recommended
that Abelardo B. Licaros be
charged as principal but the Tanodbayan included him
only as an accessory after the fact.

On November 26, 1982,
the Tanodbayan filed an amended
information in naming the same persons as principals, except Rogelio dela Cruz who is now charged as an accessory, together with
private respondent Abelardo B. Licaros.

On November 29, 1982,
the accused were arraigned, including private respondent Abelardo
B. Licaros, who interposed the plea of not guilty.

On January 7, 1983,
the Tanodbayan filed with the Sandiganbayan
a “Motion for Discharge” of accused Abelardo
B. Licaros to be utilized as state witness, alleging
that all the requisites prescribed in Section 9, Rule 119 of the Rules of Court
have been fully complied with.

The motion for discharge was opposed by herein petitioner Leo
Flores, on the ground that the bare assertions of the prosecution (1) that there
is absolute necessity for the testimony of Abelardo
B. Licaros; (2) that there is no other direct
evidence available for the proper prosecution of the offense charged except his
testimony; and (3) that his testimony can be substantially corroborated in its
material points, are all self-serving allegations which are not substantiated.
Further, petitioner Flores claims that from the records of the preliminary
investigation of the robbery case conducted by the Tanodbayan,
Abelardo B. Licaros appears
to be the most guilty and is, in fact, the mastermind
in the commission of the offense charged.

On February 11, 1983,
the Sandiganbayan issued a resolution granting the
motion and ordering the discharge from the information of private respondent Abelardo B. Licaros. Petitioner Flores
filed a motion for reconsideration but the same was denied in the court’s
resolution dated March 21, 1983.

Hence, this petition.

Section 9, Rule 119 of the Revised Rules of Court, provides:

“SEC. 9 Discharge of one of several defendants to be
witness for the prosecution. – When two or more persons are charged with
the commission of a certain offense, the competent court, at any time before
they have entered upon their defense, may direct one or more of them to be
discharged with the latter’s consent that he or they may be witnesses for the
government when in the judgment of the court:

“a)  There is absolute
necessity for the testimony of the defendant whose discharge is requested;

“b)  There is no other direct evidence available
for the proper prosecution of the offense committed, except the tes­timony of
said defendant;

“c)  The testimony of said defendant can be
substantially corroborated in its material points;

“d)  Said defendant does
not appear to be the most guilty;

“e)  Said defendant has
not at any time been convicted of any offense involving moral turpitude.”

It is apparent from this rule that the discharge of an accused
from the information so that he may be utilized as a state witness is the
exclusive responsibility of the trial court provided that it sees to it that
the requisites prescribed by the rules exist, particularly the requisite that
there is absolute necessity for the testimony of the defendant whose discharge
is requested. Under this requisite, the fiscal must show that there is absolute
necessity for the testimony of the defendant whose discharge he seeks, in order
to be a witness for to prosecution. This requirement is aimed to curtail
miscarriage of justice, before too common, through the abuse of the power to
ask for the discharge of one more defendants. Absolute necessity of the
testimony of the defendant, whose discharge is requested
must now be show if the discharge is to be allowed, and the power to determine
the necessity is lodged upon the court. (People vs. Ibañez,
92 Phil. 933). The expedient should be availed of, only when there is absolute
necessity for the testimony of the accused whose discharge is requested, as
when he alone has knowledge of the crime, and not when his testimony would
simply corroborate or otherwise strengthen the evidence in the hands of the
prosecution (People vs. Borja 106 Phil. 1111).

Petitioners claim that the contents of the affidavit dated June
14, 1982, of private respondent Abelardo B. Licaros, which in all probability would be the nature of
his testimony as a state witness, is not absolutely neces­sary if the purpose
is to pinpoint the role of petitioner Modesto Licaros
considering the other evidence submitted by the National Bureau of
Investigation to the Tanodbayan, like the affidavits
executed by the three (3) Security Guards of the Home Savings Bank, namely:
Romeo Pomada, Edgardo Aranillo and Elias Gellecanao
mentioning petitioner Modesto Licaros. Thus,
petitioners contend that there can be no basis for the prosecution “to
honestly assert that there is absolute necessity for the testimony of Abelardo B. Licaros for the
purpose of establishing the participation of Modesto Licaros
in delivering the money to the Home Savings Bank. At most, the intended
testimony of Abelardo B. Licaros
is only corroborative of the statements of the other witnesses submitted by the
NBI to the Tanodbayan.” (p. 17, Memorandum for
Petitioners)

At any rate, the discharge of an accused may be ordered “at
any time before they (defendants) have entered upon their defense,” that
is, at any stage of the proceedings, from the filing of the information to the
time the defense starts to offer any evidence. In the case at bar, considering
the opposition of herein petitioners to the motion for the discharge of Abelardo B. Licaros, particularly
the contention that he (herein private respondent) is the most guilty and that
his testimony is not absolutely necessary, the trial court should have held in
abeyance or deferred its resolution on the motion until after the prosecution
has presented all its other evidence. Thereafter, it can fully determine
whether the requisites prescribed in Section 9, Rule 119 of the New Rules of
Court, are fully complied with. Besides, there lies the danger where one or
more of the defendants are discharged before the commencement of the hearing,
he/they may disappear in which case the purpose of his/their exclusion will
come to naught. It is necessary that certain safeguards be taken,
otherwise an injustice may be committed.

WHEREFORE, the resolution of respondent Sandiganbayan, dated February 11, 1983, ordering the
discharge from the information of accused Abelardo B.
Licaros in Criminal Case No. 6672, as well as its
resolution, dated March 21, 1983, denying petitioners’ motion for reconsideration,
are hereby SET ASIDE.

SO ORDERED.

Teehankee, Acting C.J., Makasiar, Concepcion, Jr.,
Guerrero, Abad Santos, Escolin
and Gutierrez,
Jr., JJ., concur.

Fernando, C.J., on official leave.

Aquino and Melencio-Herrera,
JJ., in the result.

De Castro and Vasquez, JJ., on leave.

Plana, J., no part.