PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ROBERTO LIBAG Y CABADING, ACCUSED-APPELLANT.

Roberto Libag y Cabading,
found guilty beyond reasonable doubt of violating Section 4, Article II of
Republic Act No. 6425 (Dangerous Drugs Act of 1972 as amended) by the Regional
Trial Court, First Judicial Region, Branch V, Baguio
City and sentenced to suffer the penalty of imprisonment for life, to pay a
fine of P20,000.00 and costs, now seeks a reversal of the said decision and
prays for his acquittal on the ground that the trial court erred in finding him
guilty for the following reasons –

“1.     THE TRIAL COURT
CORRECTLY DISRE­GARDED THE INHERENTLY HEARSAY TESTIMONY OF THE TWO ARRESTING
OFFICERS, THE ALLEGED “BUYER” NOT HAVING BEEN PRESENTED AS A WITNESS.

“2.     THE POLICE
OFFICERS, THROUGH THEIR INFORMER, INSTIGATED THE COMMISSION OF THE OFFENSE;

“3.     THE FISCAL
CONDUCTED THE PRELIMINARY INVESTIGATION AND FILED THE INFORMATION AGAINST THE
ACCUSED-APPELLANT ONLY IN VIOLATION OF RULE 110, SECTION 1, REVISED RULES OF
COURT WHICH REQUIRES THAT CRIMINAL ACTION BE COMMENCED AGAINST ALL PERSONS WHO
APPEAR TO BE RESPONSIBLE FOR THE OFFENSE CHARGED;

“4.     THE TRIAL COURT
CONVICTED THE ACCUSED-APPELLANT NOTWITHSTANDING THE INHERENT INCREDIBILITY OF
THE EVIDENCE FOR THE PROSECUTION AND THE MATERIAL CONTRADICTIONS IN THE
TESTIMONY OF THE TWO ARRESTING OFFICERS;

“5.     THE TRIAL COURT
FAILED TO APPLY BOTH THE LAW AND APPLICABLE JURISPRUDENCE AND THEREBY CONVICTED
THE ACCUSED-APPELLANT NOTWITHSTANDING INDUBITABLE EVIDENCE THAT THE LATTER DID
NOT KNOW THAT THE PLASTIC BAG, TOPPED BY ‘PECHAY’ CONTAINED MARIJUANA FLOWERING
TOPS AT THE BOTTOM.” (p. 102, Rollo)

The information filed against the accused alleged:

“That on or about the
7th day of November, 1983, in the City of Baguio,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there
willfully, unlawfully, and feloniously attempt to sell, deliver, give away to
another and distribute three (3) kilos of marijuana flowering tops, a
prohibited drug, well-knowing that the sale, delivery and distribution to
another of such drug is prohibited without authority of law to do so, in violation of the aforesaid law.

“CONTRARY TO LAW.” (p. 4, Rollo)

That guilt was established beyond reasonable doubt was justified
by the trial court in its now assailed decision in this wise –

“The prosecution has established an overwhelmingly convincing
case against Libag. 
In fact, he could do nothing but admit having delivered the plastic bag
containing the marijuana.  His pretension
that he did not know the contraband contents of the bag as he was merely sent
on an errand to deliver it, is incredulous, if not
preposterous.  It is simply unbelievable that three complete
strangers would pick on him to do the errand considering its highly dangerous
nature and for him to oblige for the paltry sum of P2.00.  What is more, it appears odd that he did not
even ask for the names of the three men who supposedly sent him on the errand so he could give
the corresponding information to the other end nor did he inquire from them to
whom in particular he was going to deliver the bag.  All these would only suggest that his line of
defense is the product of desperation.” (p. 8, Rollo)

The prosecution’s evidence upon which the finding of guilt beyond
reasonable doubt was based was narrated by the trial court thus –

“Cpl. Eduardo Garcia and Pfc. Virgilio
Visperas, both of the Vice and Narcotics Division of the Baguio
City Police Station, testified that in the afternoon of November 7, 1983, at
about 1:00 o’clock, one of their informers reported that two male persons were
offering to sell him marijuana.

“Forthwith, the late Lt. Manansala,
then the Chief of the Division, prepared a buy-bust operation.  He told the informer to contact the would-be
sellers and make an arrangement for the purchase of five kilos of the prohibited stuff.  In the company of Cpl. Garcia and Visperas, the informer proceeded to Elena’s Lunch on Abanao Street where the latter
made contact with the would-be sellers. 
After making the contact, the informer told Cpl. Garcia and Visperas that the deal would be carried out at the Leisure
Lodge on Magsaysay Avenue
later in the afternoon because the would-be sellers would still fetch the stuff
from La Trinidad, Benguet.

“After preparing the entrapment or boodle money, Cpl. Garcia,
Pfc. Visperas and the informer proceeded to the
Leisure Lodge to wait for the would-be sellers. 
That was at about 3:00 o’clock.  At about 4:15
o’clock, two male persons arrived, one of whom was carrying a
multi-colored plastic bag.  The person
carrying the bag entered the Lodge while his companion stayed behind at the
driveway.

“Once inside the Lodge, the person carrying the bag handed the
said bag to the informer who was
infront of Room 104. 
Thereupon, the informer gave the pre-arranged signal that delivery had
been made.  Pfc. Visperas,
who was at the lobby about 10 to 12 meters away, closed in and arrested the
person who turned out to be the herein accused Roberto Libag.  Libag’s companion was able to elude apprehension.

“Still at the Lodge, the plastic bag (Exhibit ‘E’) delivered
by Libag to the informer was examined and was found
to contain three (3) separate bundles of suspected dried marijuana flowering
tops (Exhibit ‘B’, ‘C’ and ‘D’). 
Together with the confiscated items, Libag was
brought to the police station where he was searched but only a lighter was
found in his person.

“Both Cpl. Garcia and Pfc. Visperas
did not see what the informer did with the entrapment money.  According to Cpl. Garcia, the informer was
about to pull out the money from his pocket when Libag’s
arrest was effected.  The money was later
on returned to Lt. Manansala as it belonged to him.

“The plastic bag and its contents were promptly referred to
the PC Crime Laboratory at Camp Dangwa, La Trinidad, Benguet, for chemical analysis (Exhibit ‘A’).  Forensic Chemist Carlos Figueroa performed
the examination and found out that the three bundles of dried flowering tops
contained in the bag were positive to the test for marijuana (Exhibit
‘F’).  The stuff had an aggregate weight
of 3.20 kilos, and Exhibit ‘B’ – 9.5 kilos; Exhibit ‘C’ – 1.10 kilos, and
Exhibit ‘D’ – 1.15 kilos).” (pp. 6-7, Rollo)

On the other hand,
the accused narrated a different version of what transpired.  Also as stated by the trial court –

“Libag, a native of Kapangan, Benguet, who was then
above 17 but below 18 years of age, having been born on December 1, 1965 (Exhibit
‘1’), admitted that he delivered a plastic bag to a big house near the
Philippine Rabbit Terminal on Magsaysay Avenue, Baguio City, in the afternoon of November 7, 1983.  However, he disclaimed ownership of the bag
and knowing its contents, except for the pechay on
top.  He further asserted that he handed
the bag to a woman in the big house.

“Narrating how he came upon the bag, Libag
declared that he was then on Magsaysay Avenue waiting
for a ride to La Trinidad when three (3) men, one of whom was holding a bag,
approached him and requested him to deliver the bag to a big house nearby.  At first, he refused but upon being offered
P2.00 for the errand, he finally agreed. 
He took the bag to the big house and on seeing a woman there, he told her that he was leaving the bag.  However, the woman asked him to bring the bag
to a room inside the house.  The woman
opened the door to the room and once Libag was
inside, she followed him and then locked the door.  The woman threw a stone at another door and
two policemen appeared.  They inspected
the bag and found marijuana inside. 
Despite his protestations that the bag did not belong to him, Libag was taken by the policemen to the police station
where he was frisked but only a
lighter was found in his person.

“Libag also tried to show that he was then in Baguio only to buy bean seedlings
and that he had never been to Elena’s Lunch.

“Libag was corroborated by Alsado A-at, a townmate in Kapangan, Benguet, who was then
allegedly also on Magsaysay
Avenue at the time, waiting for a ride for La
Trinidad, and he thus over-heard the conversation between Libag
and the three men who requested Libag to deliver the
bag.  But A-at went on further to say that the bag is prosecution’s evidence marked
Exhibit ‘E’ with its pechay content visible at the
top.” (pp. 7-8, Rollo)

The trial court found that the evidence of the prosecution did
not sufficiently prove a case of illegal sale of marijuana.  Nonetheless it found that there was
consummated delivery of marijuana. 
Thus,

“Coming now to Libag’s degree of
culpability, the prosecution evidence does not sufficiently show a case of
illegal sale of the prohibited stuff. 
This is for the reason that the police informer who arranged the deal
was not presented as a witness.  The
testimonies of Cpl. Garcia and Pfc. Visperas that a
sale was intended are hearsay and bereft of probative value since they have no
first-hand knowledge of the real transaction between the informer and Libag.

“Nonetheless, consummation of the delivery of the marijuana by
Libag to the informer has been proven within the
context of the term ‘deliver’ under the law which is defined as a ‘person’s act
of knowingly passing a dangerous drug to another personally or otherwise; and
by any means, with or without consideration’ (Article I, Section 2(f), R.A. No.
6425).

“Although the indictment charges merely an attempt, while the
proof has established a consummated offense, the variance is of no moment for
under Article IV, Section 21(b) of the law violated, an attempted delivery of
dangerous drugs is punished by the same penalty as that prescribed for
consummated delivery.

 “The imposable penalty
is life imprisonment to death and a fine of P20,000.00
to P30,000.00 (Article II, Section 4).

“Considering that Libag was, at the
time of the commission of the offense, a minor above 17 but below 18 years of
age, the Court shall impose on him the minimum penalty although strictly
speaking his minority is not a mitigating circumstance since the violation is
against a special law and not against the Revised Penal Code.” (pp. 8-9, Rollo)

This Court once said
in People v. Ale, 145 SCRA 50, 58 –

“Judges trying narcotics cases are often placed in a
non-enviable predicament.  The threat
posed by drugs against human dignity and the integrity of society is malevolent
and incessant.  Courts should not hamper,
in any way, the dedicated although sometimes puny efforts to stem the giant
menace.  Courts should not unwittingly
tie down the hands of narcotic agents whose work is already difficult and dangerous
enough without legal and procedural obstacles to successful prosecu­tions.

“At the same time, 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 case with which sticks of
marijuana or grains of heroin can be planted in pockets or hands of
unsuspecting provincial licks, 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 unusually severe penalties for drug
offenses.”

In the instant case, We find that the
evidence for the prosecution, upon which the trial court based its finding of
guilt beyond reasonable doubt, is not strong enough to convince a reasonable
mind to conclude that the herein accused-appellant had knowledge that
the bag he delivered contained marijuana.

The Trial Court, in its decision, said:  “Cpl. Eduardo Garcia and Pfc. Virgilio Visperas, both of the
Vice and Narcotic Division of the Baguio City Police
Station, testified that in the afternoon of November 7, 1983, at about 1:00
o’clock, one of their informers reported that two male persons were offering to
sell him marijuana.” (p. 1, Decision)

“Forthwith, the late Lt. Manansala,
then the Chief of the Division, prepared a buy-bust operation.  He told the inform­er to contact the would-be
sellers and make an arrangement for the purchase of five kilos of the
prohibited stuff.  In the company of Cpl.
Garcia and Visperas, the informer proceeded to
Elena’s Lunch on Banao St.
where the latter made contact with the would-be sellers.  After making the contact, the informer told
Cpl. Garcia and Visperas that the deal would be
carried out at the Leisure Lodge on Magsaysay Avenue later in the
afternoon because the would-be sellers would fetch the stuff from La Trinidad, Benguet.” (Id.)

It must be noted that the testimony of the police officers
summarized by the Trial Court, as quoted above, was based not on their personal
knowledge of what transpired between the informer and the “two male
persons” but on what their alleged would-be buyer narrated, and it is the alleged
agreement to sell forged between the “buyer” and the “two
male persons” that the Trial Court relied upon to conclude that the
accused-appellant knew he was carrying marijuana flowering tops in the
plastic bag, and that he carried them and knowingly delivered them to
the “buyer” pursuant to the alleged agreement to sell.  It is for that reason that it becomes
necessary to present the alleged poseur-buyer as witness to testify on the said
agreement to sell.

During the trial, Pfc. Visperas, one of
the arresting officers was asked on cross-examination this question:

“Can you tell us the name of that informer
(“buyer”)?”

The fiscal promptly objected to the
question and the Trial Court sustained the objection.  (t.s.n., February 1, 1984, p. 13)  Likewise, when the second arresting officer,
Cpl. Eduardo Garcia was being cross-examined, he was asked the question:

“Q.  Are
you at liberty to inform us who your informer was?

A.    I’m
sorry, we could not give you or tell you the identity
of my informer.”

Before the prosecution concluded the presentation of testi­monial
evidence, Fiscal Carbonell manifested in open court:

“I was trying to convince my witnesses, the arresting
officers, to reveal the identity of their informer but they seem to be
reluctant, Your Honor.  However, may we
be given time to convince them, to convince these police officers?” (t.s.n., March 6, 1984, p. 9).

At the next hearing, however, Fiscal Carbonell
informed the Trial Court that “We are ready to close the evidence for the
Government Prosecution, Your Honor.” (t.s.n., March 26, 1984).

It may not be amiss to say that the prosecution willfully
suppressed evidence vital in the case. 
Apparently, Fiscal Carbonell was aware of the
consequence of such action when he informed the Trial Court that he will try to
convince his witnesses to reveal the identity of the alleged
would-be-buyer.  Apparently too, the
police officers were unmoved.  Thus, not
only had the prosecution failed to present a material witness, but by refusing
to disclose the identity of their poseur-buyer, the accused-appellant was
deprived of the opportunity to require production of the said witness by
compulsory process.  While it is true
that the non-revelation of the identity of an informer is a standard practice
in drug cases, such is inapplicable in the case at bar as the circumstances are
different.  The would-be buyer’s
testimony was absolutely necessary because it could have helped the Trial Court
in determining whether or not the accused-appellant had knowledge that
the bag contained marijuana, such knowledge being an essential ingredient of
the offense for which he was convicted. 
The testimony of the
poseur-buyer (not as an informer but as a “buyer”) as to the alleged
agreement to sell therefore became indispensable to arrive at a just and proper
disposition of this case.

The presumption that the accused-appellant had knowledge that he
was delivering marijuana is a rebuttable
presumption.  Against this presumption,
the accused has consistently denied such knowledge.  The testimony of the would-be-buyer could
have confirmed the claim of the accused that he did not know that the bag he
delivered contained marijuana and thus should have resulted in his acquittal.  Absent such evidence, We
are constrained to reverse the Trial Court’s judgment
of conviction for failure of the prosecution to sufficiently prove an essential
element of the offense charged.  Clearly,
the only basis
for the judgment of conviction were the testimonies of the two police
officers, uncorroborated by any other evidence. 
Fundamental is the rule that the prosecution has the burden of proving
the guilt of the accused beyond reason­able doubt.  It is not incumbent upon the accused to
disprove his guilt.  Stated otherwise,
the prosecution must rely on the strength of its own evidence and not on the
weakness of the evidence for the defense.

(a) Cpl. Eduardo Garcia testified in a manner that conveyed the
idea that the “buyer” was a male. 
Thus, when asked the distance of the “buyer” from the accused
at the time of arrest, the witness replied: 
“He is only facing the accused in front of the door of Room
104” (t.s.n., March 1, 1984, p. 8). 
When asked whether the “buyer” was able to deliver the money
to the accused, the witness said that “he was not able to do so” (Id.).  When asked what the “buyer” was
doing with the money at the time of the arrest, the witness replied:  “he placed it … he was about to pull out
from his pocket.”

In the Joint Affidavit of witnesses Visperas
and Garcia, they declared that “they received reliable information from
one of our “buyers” that he was able to contact two (2) sus­pected
male pushers … they advised him to order five kilos of marijuana leaves
…” (Exh. ‘G’).

These declarations leave no doubt that the unidentified
“buyer” referred to by the two police officers was a male person.  Yet, the accused
in his uncontradicted testimony was that he left a
plastic bag found later to contain mari­juana flowering tops to a woman infront of a room inside Leisure Lodge
and that he was arrested after he had done so.

(b) Pfc. Visperas said that the “buyer” had
something like P5,000.00 of which P2,000.00 was in
cash, and the others were sheets of bond paper presumably made to look like money.  (t.s.n.,
Feb. 1, 1984, p. 10).

In the course of his testimony, Pfc. Visperas
declared that the “buyer” had P5,000.00 of which P2,000.00 was in
cash and the rest consisted of what he described was “boodle” money or bond paper presumably cut to the
required size to buy five (5) kilos of marijuana.  (Id., p. 14, t.s.n., Feb. 1, 1984, p. 10).

Cpl. Garcia, however declared that at the time Pfc. Visperas and he proceeded to Leisure Lodge, the
“buyer” received P3,000.00 of which
P1,000.00 was in cash and the rest in ‘model’
money consisting of paper folded to look like real money (t.s.n.,
March 6, 1984, p. 6).

(c) The trial court in its decisions said:  “Both Cpl. Garcia and Pfc. Visperas did not see what the “buyer” did with
the entrapment money.  According to Cpl.
Garcia, the “buyer” was about to pull out the money from his pocket
when Libag’s arrest was effected.  The money was later on returned to Lt. Manansala as it belonged to him.” (p. 2, Decision)

There is no doubt that upon his arrest, the accused was frisked
and the only object found on his body was a
lighter – no money was found with him (t.s.n.,
March 6, 1984, p. 7).  The “buyer” was not able to deliver
the money to him.  (Id.,
p. 8).

No mention was made of any money which the “buyer” had
which the latter pulled out of his/her pocket to be handed over to the
accused.   The most that Pfc. Visperas was able to say was “I presume it was handed
to the pusher, sir.” (t.s.n., Feb. 1, 1984, p. 12).  He was only
10 to 20 meters away from the “buyer” and the accused (Id., p.
15).  Notwithstanding the short distance,
he did not see the “buyer” hand the money to the accused.  (Id.).

(d) During the trial, the police officers testified and confirmed
the presence of two suspects.  But the
accused was not investigated about his possible associated activi­ties, the
source or sources of marijuana, the persons who sell them, where they are sold,
to whom they are sold and whether or not they belong to a criminal
syndicate.  The failure to conduct this investigation is most
unusual unless the policemen and later the investigating fiscal knew that the
accused was what he represented to be – an innocent by-stander – a person who
unknowingly participated in an unlawful act.

Due to the above-stated contradictions and inaccuracies of the
evidence for the prosecution, the evidence for the defense merits careful
evaluation.

According to appellant he was waiting for a ride at the
Philippine Rabbit Station when three (3) men one of whom was holding a bag,
approached him and requested him to deliver the bag to a big house nearby.  At first, he refused but upon being offered
P2.00 for the errand, he finally agreed. 
He took the bag to the big house and on seeing a woman there, he told her that he was leaving the bag.  However, the woman asked him to bring the bag
to a room inside the house.  The woman
opened the door to the room and once Libag was
inside, she followed him and then locked the door.

This testimony was not contradicted by the prosecution.

Nevertheless, the trial court found the evidence of guilt against
the accused “overwhelming”. 
“His pretension that he did not know the contraband content of the
bag or he was merely sent on an errand to deliver it,
is incredulous, if not preposterous.  It
is simply unbelievable that three com­plete strangers would pick on him to do
the errand considering its highly dangerous nature, and for him to oblige for
the paltry sum of P2.00.  What is more,
it appears odd that he did not even ask for the names of the three men who
supposedly sent him on the errand so he could give the
corresponding information to the others nor did he inquire from them to whom in
particular he was going to deliver the bag. 
All of these would only suggest that this line of defense is a product
of desperation.” (p. 8, Rollo)

We cannot in conscience agree with the opinion of the Trial
Court.  The accused-appellant was a
penniless youth who was offered the opportunity to earn P2.00 by carrying a
plastic bag believed by him to contain “pechay”
to a woman at a nearby building.  The
Leisure Lodge happened to be a motel.  The accused apparently did not know
what sort of establishment it was.  To
him it was a “big house”.  The
door was opened to him by a woman.  He
did not expect to be paid by the person who will receive the bag, hence, after
making the delivery he made a move to leave at once.  But this was not proceeding according to the
plan.  The male “buyer” who was
not too far away neither had the opportunity to receive the plastic bag nor to
pull out his money, much less pretend to comb his
hair.  The police had to move in to effect the arrest.

This could account for the inexplicable failure to present the
poseur buyer as a witness.  His testimony
would confirm the statement of the accused that he had no knowledge that the
plastic bag contained marijuana flowering tops. 
Also, this could explain why the poseur buyer was not able to deliver
the marked money to the accused.  The bag
was delivered to the wrong person.

The police officers talked of a “second-man” who was
allegedly the companion of the accused at the time the plastic bag was
delivered.  But this
“second-man” was not arrested nor charged even as a John Doe defendant.  The accused was not even investigated about
the identity of this “second-man”. 
Could it be that there was no “second-man”?

If the inculpatory facts and
circumstances are capable of two or more explanations, one of which is
consistent with the innocence of the accused and the other consistent with his
guilt, then the evidence does not fulfill the test of moral certainty and is
not sufficient to support a conviction.  (People v. Parayno, 24 SCRA 3, People v.
Ale, supra).

As stated in the case of
People v. Alcaraz, (G.R. No. 66509, April 25,
1985):

“x x x The Constitution and the law
are clear that in case of reasonable doubt,
the accused must be acquitted.  Our
jurisprudence is built upon the concept that it is preferable for the guilty to
remain unpunished than for an innocent person to suffer a long prison term
unjustly.”

Finally, the information accused Roberto Libag
of the “attempt to sell, deliver, give away to another and distribute
three (3) kilos of marijuana flowering tops, a prohibited drug well-knowing that the sale, delivery and
distribution to another of such drug is prohibited x x
x.

It is basic that in a criminal case, the prosecution avers the
guilt of the accused who is presumed to be innocent
until the contrary is proved.  Therefore,
the prosecution must prove such guilt by establishing the existence of all the elements of the crime
charged.  In so doing, the prosecution
must rely on the strength of its own evidence, not on the weakness of the
defense.  Clearly, one of the elements of
the offense is that the accused knowingly delivered a dangerous drug to
another.  The prosecution must prove know­ledge
of the accused, not that he knew that marijuana is classified as a dangerous
drug, but that he knew as marijuana the contents of the plastic bag he
delivered.

The evidence of the prosecution definitely is wanting on this
point.

PREMISES CONSIDERED, We hold that the
guilt of appellant Roberto Libag has not been
established beyond reasonable doubt.

WHEREFORE, for lack of proof of his guilt beyond
reasonable doubt, Roberto Libag y Cabading
is hereby ACQUITTED of the crime
charged.  Costs de
oficio.

SO ORDERED.

Melencio-Herrera, (Chairman),
Padilla, Sarmiento, and
Regalado, JJ., concur.