PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ROGER FERNANDO Y BAZAN, DEFENDANT-APPELLANT.

The defendant-appellant was nineteen years old when he was
arrested on October 28, 1983,
in Zamboanga
City, for allegedly selling
marijuana.  He was taken that same evening to the Narcotics Command office
where, after investigation, he signed a
confession he later affirmed under oath. 
Charged with violation of the Dangerous Drugs Act, he was tried and
ultimately convicted.  The penalty
imposed on him was life imprisonment plus a
fine of P20,000.00 and the costs.^[1]

As found by the trial court,* Roger
Fernando was a suspected drug pusher who had earlier been placed under surveillance by the agents of the Narcotics
Command.  In the evening of the said
date, Alfredo Conde, a civilian informer of the NARCOM, waited by pre-arrangement for Fernando
near a store while the agents posted themselves at strategic places in the
vicinity.  When Fernando arrived, he gave
Conde two plastic wrappers containing dried
marijuana leaves, for which the latter paid two P5.00 bills previously marked
with the signature of one of the agents, Sgt. Norberto Francia.  The NARCOM agents then swooped down on Fernando
and confiscated the marked bills, in addition to three sticks of marijuana
leaves which were found in the right-hand pocket of his pants.  His confession was later taken after a
protracted investigation.^[2]

These findings were based
mainly on the extrajudicial confession of Fernando and the testimonial evidence
of the prosecution witnesses, both of which the defendant-appellant now asks us
to reject.

In objecting to the
extrajudicial confession,^[3] Fernando claims it was obtained through
force and violence inflicted upon him by the NARCOM agents in their office the
night he was picked up.^[4] According to him, he was manhandled by the
agents to force him to sign the confession but he did not inform his father
about it because he was afraid of further punishment from the agents.^[5] In fact, as the record shows, he did not
complain either to any one else afterwards, not even to the fiscal who
administered the oath when he subscribed his confession again.  Fernando did speak of his alleged maltreatment
during the trial.  However, no witnesses
were presented to corroborate him; there was also no physical evidence of the
claimed injuries; and no medical certificate thereof was submitted to the
court.

Nevertheless, the
extrajudicial confession will still have to be disregarded.  The reason is the obvious lack of compliance
with the indispensable requirements of the Bill of Rights for the protection of
the suspect under custodial investigation. 
We have examined the said confession and find there was a mere pro forma effort to inform the defendant-appellant of
his rights under the Constitution.  This
is manifest from the following exchange preceding the actual interrogation:

“Preliminary:    Mr. Roger B. Fernando, you are hereby
informed that you are under investigation for commission of an offense.  Under our New Constitution, you have the
right to remain silent and to counsel of your own choice and if you cannot
afford to retain a lawyer to assist you in this investigation, the Government
shall provide you one.  Is this clearly
understood?

Answer:           Yes sir.

Question:         After having appraised of your legal
right under the New Constitution, do you understand your right?

Answer:           Yes sir.

Question:         Do you wish to sign a waiver stating
among other that you wish to be investigated even without the presence of your
counsel?

Answer:           Yes sir.”^[6]

The above perfunctory and
almost mechanical “compliance” certainly did not follow the
prescribed procedure in the investigation of persons suspected of criminal
offenses.  The rights guaranteed by the
Constitution were merely communicated but not explained to the suspect
notwithstanding the apparent need to do so, considering his circumstances.  Mere recitation of these rights is not enough
where it is not shown that the person entitled thereto can knowingly and
intelligently waive them, as we held
in People v. Caguioa.^[7] Moreover, the waiver must now be made with the assistance of counsel in accordance with the rules laid down in People v. Galit^[8] as affirmed and even strengthened in
the new Constitution.

In Galit,
the Court declared:

“At the time a person is arrested, it shall be the duty of the
arresting officer to inform him of the reason for the arrest and he must be
shown the warrant of arrest, if any.  He
shall be informed of his constitutional rights to remain silent and to counsel,
and that any statement he might make could be used against him.  The person arrested shall have the right to
communicate with his lawyer, a relative, or anyone he chooses by the most
expedient means – by telephone if possible – or by letter or messenger.  It shall be the responsibility of the
arresting officer to see to it that this is
accomplished.  No custodial investigation
shall be conducted unless it be in the presence of counsel engaged by
the person arrested, by any person on his behalf, or appointed by the court
upon petition either of the detainee
himself or by anyone on his behalf.  The
right to counsel may be waived but the waiver shall not be valid unless made
with the assistance of counsel.  Any
statement obtained in violation of the procedure herein laid down, whether
exculpatory or inculpatory, in whole or in part,
shall be inadmissible in evidence.”

It is noteworthy that the
defendant-appellant was detained for all of five hours by the narcotics agents
before they extracted the two-page extrajudicial confession from him.^[9] The questioning could not have taken twenty
minutes to reduce to writing.  During all
the time he was under investigation, there was no counsel to assist him.  Even his father, who was waiting in the
office where his son was being detained, was asked to go home before the actual
interrogation began.^[10] The defendant-appellant was all alone in the
office of his inquisitors when he finally signed the extrajudicial confession.

Echoing and even
improving upon Galit, Section 12 of the new Bill of
Rights, provides as follows:

“Sec. 12.  (1) Any
person under investigation for the commission of an offense shall have the
right to be informed of his right to remain silent and to have competent and independent
counsel preferably of his own choice.  If
the person cannot afford the services of counsel, he must be provided with one. 
These rights cannot be waived except in writing and in the presence of
counsel.”

“(3)    Any confession or admission obtained in
violation of this or Section 17 hereof
shall be inadmissible in evidence against him.”

The requirements embodied in these rules are especially important
in cases like the one at bar, where the suspect from whom the uncounseled confession was taken was not yet in his
twenties at the time.  Nineteen is a
vulnerable age.  A teenager is
practically putty in the hands of hardened investigators whose excess of zeal
in the discharge of their work may tempt them to take constitutional shortcuts
to secure a conviction.  Such excesses
will be futile now because the confession they may extract will not be
admissible in evidence against the accused.

Exclusion of the extrajudicial confession will leave the
prosecution with hardly a leg to stand on, so to speak, for the rest of the
evidence is also unreliable.  The
declarations of the prosecution witnesses are so confused and inconsistent, to
say the least, as to dictate disbelief and call for their rejection.

There is, first of all, Alfredo Conde,
whose testimony understandably excited the amazement and anger of the trial
judge for its sheer incredibility.  This
24-year old witness, employed as a janitor in the NARCOM office, was supposed
to double as an informer and was the person used to entrap the defendant-appellant.^[11] The astonishing thing about Conde is that, when asked to read an affidavit he was supposed to have signed
earlier, he said he could not do so because he did not know how to read.  The
reaction of the trial judge speaks for itself:

“Q:  Do
you remember having executed an affidavit in connection with this case?

A:  Yes.

Q:  Considering that you are a high school
graduate, we presume that you know how to read?

A:  Not much.

Q:  But can you read this affidavit that you
executed?

A:  I do not know how to read.

COURT:

Impossible!!..  You are a high school  graduate you do not know how to  read!!!… 
You are lying!!..  You read  that!…

WITNESS:

I do not know how to
read.”^[12]

This same witness testified that he was unable to buy marijuana from
the defendant-appellant in the afternoon of October 28, 1983,^[13] but NARCOM agents Rodolfo Aquino and Norberto Francia
declared under oath that he did.^[14]
Conde said he paid P10.00 for one bag of marijuana in
the afternoon (thus contradicting himself)^[15]
but in the evening of the same day, only a few hours later, he said he paid
P10.00 for two bags.^[16]
Conde said that upon receiving the two marked bills,
Fernando placed them in his pocket,^[17]
but Aquino said that when he apprehended Fernando, the latter was still holding the
marked money.^[18] Conde also said he bought the marijuana in front of the Chinese temple,^[19] then changed his mind and said it was in front of the nearby store,^[20] which he said was closed at the time.^[21] Aquino and Francia both said it was open.^[22]

As for the NARCOM agents,
there is no dearth of contradiction either in their declarations.  Thus, Aquino said
they had a briefing on October 28, 1983, by their commanding officer before they
sent Conde to “test-buy,” but Francia said they sent out Conde
first before the briefing.^[23] Aquino said that
when they arrested Fernando, he and all the six NARCOM agents rode in a Land
Rover, which could accommodate all seven of them because it was “a very
big vehicle.”^[24] However, Francia
said that they used not only the Land Rover but also a motorcycle, where he
himself rode.^[25] Aquino said that
he was about 15 meters from the defendant-appellant and saw the latter give a
cellophane bag to Conde,^[26] but Francia
testified that at the time of the transaction, Aquino
was behind Fernando.^[27] This could mean that Aquino
could not have seen what the latter was doing. 
The same Aquino swore that there were other
persons in the vicinity when Fernando was arrested^[28] but on subsequent questioning he said he
could not remember if there were people around.^[29]

For law-enforcement
officers experienced in testifying against suspected offenders, these
contradictory declarations are difficult to explain and strongly suggest that
they were merely fabricated to convict the defendant-appellant.  It is obvious that these witnesses did not
take the precaution of first comparing notes, so to speak, to avoid the
conflicting statements they later made at the trial.

The trial court says
these contradictions are minor
inconsistencies only and should not detract from the veracity of the
prosecution evidence as a whole.^[30] We do not think so.  This is a criminal prosecution.  We deal here with the liberty of
a nineteen-year old accused whose future
may be irretrievably blighted by
a careless conviction.  We cannot
be too careful in assessing the evidence
against him lest he be mistakenly condemned for life to the solitude and
shame of a prison cell.

The inherent defects in
the testimony of the government witnesses have deprived the prosecution of
that ring of truth needed to toll in the clearest tones the
defendant-appellant’s guilt.  What we see
here is a possible frame-up of the accused, prompted probably by the
frustrations of the narcotics agents over the failure of their “buy-bust”
operation.  It is not unlikely that
Fernando, assuming he was really a drug pusher, had no marijuana on him that
evening, to the chagrin of the surveillance team.  Nothing daunted, however, and so as not to
spoil their preparations, the agents arrested him just the same pursuant to
their original plan.  Then they simply
concocted the story they later narrated in court.

We have repeatedly said
that in this jurisidiction, accusation is not
synonymous with guilt.^[31] In every criminal prosecution, the accused
shall be presumed innocent until the contrary is proved,^[32] and not by a mere preponderance of
evidence but by proof beyond reasonable doubt.

The accused comes before
the court with all the cards stacked against him as it were, to answer charges
that have already been established prima facie.  His accuser is the People of the Philippines.  The full panoply of state authority is marshaled against him.  He usually faces a skilled and
experienced prosecutor.  It is therefore
only fair to tilt the scales in his favor by presuming his innocence and
thereby lessen the heavy odds against him. 
The rule is that he can be convicted not because his defense is weak but
only if the prosecution is strong.^[33]

It is true that the defense itself is weak because the
defendant-appellant and his corroborating witnesses limited themselves mainly
to denying the prosecution charges. 
According to Fernando, he was seated at the stairs of his house when he
was accosted by the agents, threatened with a gun, and forcibly brought to the
NARCOM office, where he was manhandled until he signed a confession.  It is not a very convincing defense, to be sure. 
Nevertheless, as insubstantial as it may be, the prosecution is in our view even more feeble and less
believable.  And so the conviction must
fail.

This Court holds that for all the dark suspicions that hang over
him, the defendant-appellant is still entitled to be freed.  His guilt,
if it exists at all, has not been proved beyond the whisper of a doubt.

WHEREFORE, the
conviction of the defendant-appellant is REVERSED and he is ordered released immediately.  No costs.

Teehankee, C.J., Paras,
and Gancayco,
JJ., concur.

Narvasa, J., in the result.

^[1]
Rollo, p. 14.

* Presided by Judge Jesus C.
Carbon, Jr.

^[2]
TSN, February 15, 1984, pp.
79-82.

^[3]
Rollo, p. 38.

^[4]
TSN, March 26, 1984, pp.
323-329.

^[5]
Ibid, pp. 327-331.

^[6]
TSN, February 14, 1984, pp.
70-71.

^[7]
95 SCRA 2.

^[8]
135 SCRA 465.

^[9]
TSN, February 15, 1984, pp.
79-82.

^[10]
TSN, April 25, 1984, p.
354.

^[11]
TSN, February 14, 1984, pp.
29-33.

^[12]
Ibid, pp. 13-14.

^[13]
Id, pp. 43-44.

^[14]
Exhibits “A” and “B”, February 14, 1984, p. 52; February 15, 1984, pp. 2-6; February 16, 1984, pp. 3-5.

^[15]
TSN, February 14, 1984, p.
44.

^[16]
Ibid, pp. 34-35.

^[17]
Id., p. 44.

^[18]
Id., p. 14.

^[19]
Id., pp. 6-7; 23.

^[20]
Id., pp. 41-43.

^[21]
Id., p. 42.

^[22]
TSN, February 15, 1984, pp.
15-16; February 16, 1984,
p. 40.

^[23]
TSN, February 14, 1984, p.
77; TSN, February 16, 1984,
pp. 4, 5, 25.

^[24]
TSN, February 15, 1984, pp.
46-47.

^[25]
TSN, February 16, 1984, pp.
29-30.

^[26]
TSN, February 15, 1984, p.
93.

^[27]
TSN, February 16, 1984, p.
46.

^[28]
TSN, February 15, 1984, p.
15.

^[29]
Ibid., p. 30.

^[30]
Rollo, p. 10.

^[31]
People v. Dramayo, 42 SCRA 59.

^[32]
Sec. 14(2), Art. III, 1987 Constitution.

^[33]
People v. Tempongko, 144 SCRA 583.