PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. AUREO ROJO Y GABRIEL, DEFENDANT-APPELLANT.

Once again, this Court must determine if the judgment of conviction
rendered by the trial court imposing a sentence of life imprisonment on the
defendant-appellant is proper against the theory of the defense that the
accused was never found in possession of marijuana or caught selling the same
and that the case filed against him was instigated by policemen who were
allegedly extorting money as a consideration for the release of the accused.

In an information that was filed by the
Office of the City Fiscal of Manila with Branch 15 of the Regional Trial Court
of Manila, appellant was charged with violation of Section 4, Article II,
Republic Act No. 6425, as amended by Presidential Decree No. 1675, as follows:

“That on or about April 15, 1987, in the City of Manila,
Philippines, the said accused, not being authorized by law to distribute any
prohibited drug, did then and there wilfully and
unlawfully deliver, give away, distribute, sell or offer for sale, dried
flowering tops of marijuana, which is prohibited drug.

Contrary to law.”^[1]

The case was docketed as Criminal Case No. 87-54030.

Upon his arraignment on September
17, 1987, the appellant, assisted by counsel, pleaded not
guilty.  After trial, the trial court^[2]
convicted the appellant in a decision dated February 17, 1988, the dispositive
portion of which reads:

“WHEREFORE, in the light of all the foregoing considerations,
the Court finds the accused, AUREO ROJO Y GABRIEL, guilty beyond reasonable
doubt of the crime of violation of Section 4, Article II, of Republic Act No.
6425, otherwise known as the Dangerous Drugs Act of 1972, as amended by
Presidential Decree No. 1675, and as charged in the Information, and,
accordingly, hereby sentences him to suffer the penalty of reclusion perpetua, with all the necessary penalties provided
for by law; to pay a fine of TWENTY THOUSAND PESOS (P20,000.00), without
subsidiary imprisonment in case of insolvency, and to pay the costs.

Once this Decision shall become final and executory,
the dried flowering tops of marijuana (Exhibit “F-1”) shall be turned
over to the Dangerous Drugs Board through the Director, National Bureau of
Investigation, Taft Avenue, Manila, for proper disposition.  On the other hand, the marked money which is
a P10.00 bill with Serial No. ZF-222446 (Exhibit “G”) shall be
returned to P/Sgt. Jimmy Carbonel.

SO ORDERED.”^[3]

In this appeal, appellant assigns the following errors on the
part of the trial court, to wit:

“I

THE COURT A QUO GRAVELY ERRED
IN CONVICTING THE APPELLANT FOR VIOLATION OF SECTION 4 OF ARTICLE II, R.A.
6425, AS AMENDED, DESPITE THE WANT OF EVIDENCE SUFFICIENT TO ESTABLISH HIS
GUILT BEYOND REASONABLE DOUBT.

II

THE COURT A QUO GRAVELY ERRED
IN GIVING WEIGHT AND CREDENCE TO THE TESTIMONIES OF THE PROSECUTION WITNESSES
AND IN DISREGARDING THE THEORY OF THE DEFENSE.”^[4]

The findings of fact of the trial court are as follows:

“The Special Operations Unit [or the Narcotics Control and
Investigation Section (NCIS)] received numerous complaints through telephone
calls on the rampant drug-pushing going on at Barreto St., Pandacan, that month of April 1987.  The NCIS operatives looked for an informant to
help them bust such operations until finally, Pat. Maniquiz
saw his former informant living within the vicinity of Barreto St., Pandacan, Manila.  Said informant, upon Maniquiz
invitation, came to the Special Operations Unit at around 10:00 o’clock that
night of April 14, 1987 and confirmed the rampant activities of drug pushers at
Barreto St., identifying the pushers as ‘Jay jay’,
‘Pete’ and ‘Bong’.  Sgt. Carbonel immediately organized a team – he as the team
leader and Patrolmen Maniquiz, Ramon Alferos, Danilo Paltra, Jorge Balatbat and Zaldy Papa as team members. 
Once organized they proceeded with the informant to Barreto St., Pandacan, to conduct a surveillance to
ascertain/verify whether drug-pushing was really rampant at that area.  They conducted the necessary surveillance by
posting themselves at strategic places and observing what was going on.  In due time, they saw the accused, alias
‘Bong’, talking to teenagers (some riding on bicycles and others walking),
after which he (accused) gave something to the teenagers whom he talked to and
in turn, he received something from the recipients.  Convinced that drug-pushers really
proliferated in that area, the team-members returned to the Ford Fiera vehicle which they used and where their team leader,
Sgt. Carbonel, was waiting, and reported what they
saw.  Then and there, Carbonel
briefed them and told them to implement their ‘buy-bust’ operations with the
informant as the poseur-buyer, using a P10.00 bill marked money (Exhibit ‘G’)
to buy marijuana.  Pat. Maniquiz was told to stay near the informant which he did by staying 5-7 meters from him.  Sgt. Carbonel
and Pat. Balatbat acted as perimeter security
while Patrolmen Alferos, Peltra
and Papa will be the arresting officers. 
The police informant proceeded to where the accused was at that time
which is right in front of their (accused) house.  The place was well lighted by MERALCO
street lamps. 
Alferos was 10 meters from the informant and
the accused while the others stayed at a fair distance so as not to arouse
suspicion.  Carbonel
and Balatbat stayed in their jeep parked at Beata St., which is some 100
meters from the scene.  It was agreed
that the moment their informant, would give the signal (his left hand to
scratch the left side of his head to indicate that the marijuana was already
handed to him and he, in turn, gave the money to the pusher), they will
immediately converge and effect the arrest. 
So, when they saw the informant scratching the left side of his head,
the team members converged and closed in. 
Maniquiz identified himself as a policeman to
the accused, after which he, with the assistance of Alferos,
arrested him for selling one tea bag of dried flowering tops of marijuana
(Exhibit F-1′).  The arrest was effected at 12:45 o’clock
in the early morning of April 15, 1987.  They then brought the accused, together with
the evidence, to the NCIS office.  Once
they reached their office, Carbonel turned over to
the police investigator, Pat. Eliseo Zamora, the body of the accused and the subject marijuana (Exhibit
‘F-1’) and the marked money (Exhibit ‘G’).  Zamora
informed Rojo of his constitutional rights to remain
silent, to counsel and the nature of the accusation against him which is drug
pushing.  Then, he prepared a written
request to the NBI for examination of the specimen, which, together with said
specimen, he handcarried to the NBI Forensic
Chemistry Laboratory for the determination of whether the same is positive of
marijuana or not.  Meanwhile, Carbonel and the others executed a joint affidavit of
arrest (Exhibit ‘A’ and ‘A-1’).

“The accused, known as Bong, was not only the pusher in that
place.  For he has companions like Jayjay (somewhat fat with a height of 5’5”) and Pete
(medium built and brown complexion). 
Actually, the three pushers were their objective that night but it was
only Rojo who appeared.

“After Rojo was arrested, he was
asked by Pat. Maniquiz to empty his pockets. 
The marked money (Exhibit ‘G’) was one of those brought out from the
front right pocket of his (Rojo) pants.  Maniquiz took it
while their informant delivered the marijuana to Carbonel.  Pat. Zaldy Papa
later affixed his initials (Exhibit ‘G-1’) on the P10.00 bill while Pat. Zamora
placed his initials ‘EZ’ and date (Exhibit ‘F-1-A’) on the rolling paper inside
the plastic tea bag containing dried marijuana leaves to insure that they were
the very same articles involved in the ‘buy-bust’ operations conducted
herein.”^[5]

The theory of the defense is as follows:

“Defense evidence tends to show that at around 12:30 o’clock in the
morning of April 15, 1987, appellant was in front of his house conversing with
his relatives relative to the passion-week reading (pabasa)
which he failed to attend.  After their
conversation, his relatives left to eat and proceeded to the bakery.  Soon after he was left alone, two men
approached him.  Asked who they were by
the appellant and what crime did he commit, he was
nevertheless frisked and told to stand. 
They collared him and accused him of being a drug pusher.  Maintaining his innocence, he was brought
their service vehicle parked not far away. 
Because he does not know of any offense which he has committed, appellant
struggled to free himself.  While he was
frisked by the 2 policemen, Pat. Maniquiz placed the
marked money (Exh. “G”)
in his pocket.  Then again Pat. Maniquiz showed him a small tea bag of marijuana (Exh. “F-1”).  They then forced him to board their vehicle
and appellant was accompanied by his uncle Conrado
Gabriel to Precinct 5.  The policemen
were asking P5,000.00 in consideration of the
appellant’s release which amount was later on reduced to P3,000.00.  Appellant denied selling marijuana.”^[6]

The question now before Us is – in the
light of the conflicting evidence presented, is there sufficient evidence
beyond reasonable doubt to sustain a conviction?  The charge is a grave one that carries with
it a penalty of reclusion perpetua.  Hence, the evidence must be evaluated with
extreme care.

It is a fundamental rule that a judgment of conviction must be
predicated on the strength of the evidence for the prosecution and not on the
weakness of the evidence for the defense. 
The trial court cannot merely depend upon probabilities and improbabilities
of alleged events.  It must determine
whether or not the alleged events actually happened based on the evidence
adduced.  In this case, the alleged
entrapment must be established by clear and convincing evidence.

The theory of the prosecution is that the informant acted as buyer
in the entrapment proceedings.  However,
the alleged informant was never presented as a witness.  His identity was never revealed because it
was supposed to be confidential information.

The evidence of the prosecution on the matter of the participation
of the informant as alleged buyer in the entrapment proceedings is
contradictory.  Thus, according to the
testimony of witness Sgt. Jimmy Carbonel, the person who acted as buyer in the entrapment
proceedings was Patrolman Francisco Maniquiz,
with Patrolmen Ramon Alfero, Danilo
Peltra and Rizal Papa as
arresting officers, and Patrolman George Balatbat in
charge of perimeter security.  He
testified as follows:

“DIRECT EXAMINATION BY THE
FISCAL:

“Q.  Will you tell the court the names of the
members of your team who participated in this operation and their respective
participation?

“A.   The
one who acted as poseur-buyer was Pat. Francisco Maniquiz with Pat. Ramon Alfero
and Pat. Danilo Peltra and Rizal
Papa as the arresting officers and myself, Pat. George
Balatbat as perimeter security (sic).

“Q.  How
about your informant, did he have any participation?

“A.   He
went with the poseur-buyer in the area of the suspect and conducted the
buy-bust operation.

“Q.  What
exactly did the poseur-buyer, Pat. Francisco Maniquiz do, if you know?

“A.   With
the assistance of the informant who transacted the negotiation and after a few
minutes the buy-bust operation was already conducted and the suspect was
arrested.

xxx                        xxx                   xxx                   xxx

Q.   Why was he arrested?

“A.   He
was arrested because of selling one tea bag of a special
marijuana.

“Q.  To whom?

“A.   To the informant with the poseur-buyer.”
(Emphasis supplied.)^[7]

On the other hand, prosecution witness Patrolman Francisco Maniquez testified otherwise in that the informant was the
one who acted as buyer in the entrapment proceedings.  His testimony follows:

“DIRECT EXAMINATION BY THE
FISCAL:

“Q.  What
else did you do after you saw… you allegedly saw the accused Rojo transacting with persons?

“A.   We
then had a briefing in the jeep and we told the informant what he will do.

“Q.  What
happened next?

“A.   Then
Sgt. Carbonel gave the marked money to him and he
will buy to the pusher, Aureo Rojo,….. in
order for him to buy marijuana.

“Q.  And
how about you, what did you do?

“A.   When
the informant was already buying we positioned ourselves at the place.

“Q.  Where
specifically is this place where your informant and the accused allegedly had a
transaction?

“A.   In front of the house of Aureo
Rojo.

“Q.  Where
is this?

“A.   Barreto street.

“Q.  Where? 
What district or city?

“A.   Pandacan, Manila.

“Q.  And
where were you at the time when the accused allegedly handed marijuana to your
informant?

“A.   Around 5 to 7 meters.” (Emphasis
supplied.)^[8]

Obviously, there is a fatal flaw in the prosecution’s evidence on
how the alleged entrapment proceedings took place.  The so-called informant was never
presented as a witness and he was never identified.  His having acted as buyer in the alleged
entrapment proceedings was not established as a fact by evidence beyond reasonable
doubt because of the contradictory evidence as to who really posed as
buyer.  There is now even a doubt as to
whether or not the entrapment proceedings ever took place at all.

In a prosecution for violation of Section 4, Article II of
Republic Act No. 6425 as amended by Presidential Decree No. 1675 which
penalizes any person who, unless authorized by law, shall sell, administer,
deliver, give away to another, distribute, dispatch in transit or transport any
prohibited drug, or shall act as a broker in any such transactions, the
prosecution must be able to establish by clear and convincing evidence that the
person charged at a particular time, date and place committed any of said
unlawful acts.

In this particular case, the witnesses for the
prosecution who were members of the police team at the time of the alleged
“buy-bust operation,” particularly Sgt. Carbonell
and Pat. Balatbat, were in their jeep parked
at Beata street,
some 100 meters away from the scene. 
Pat. Alferos was 10 meters away from the
informant and the appellant while Pat. Maniquiz was
about seven (7) meters away and the others stayed at a far distance so as not
to arouse suspicion.  It was only after
the informant gave the signal by scratching the left side of his head with his
left hand to indicate that the marijuana was already handed to him and that he
in turn gave the money to the appellant that the said police officers converged
and arrested the appellant.

These are the facts as found by the trial court which show that
none of the prosecution witnesses actually saw the appellant deliver the
alleged bag of flowering tops of marijuana which was allegedly sold to the
informant.  It also indicates that they
did not see the informant pay the alleged consideration of the sale with a 10-peso
bill.  They just assumed that the
transaction was consummated upon a signal from the informant.  There is, therefore, no direct evidence, much
less conclusive proof, to establish the alleged unlawful sale of marijuana
being pinned on the appellant.

If truly there was such an entrapment that was undertaken in this
case, the informant would be the best witness for the prosecution.  Inasmuch as he was not presented, the case of
the prosecution must fall.  The police
officers and the prosecution aver that they did not present the informant as
his identity was a confidential matter. 
If the purpose is to conceal the identity of the informant from the
appellant and for the personal security of said informant, the said objective
cannot be attained by withholding the testimony of the informant during the
trial.  The informant must be well known
if not familiar to the appellant otherwise the latter would not readily sell
the marijuana to the former.  Thus, the
identity of the informant was known to the appellant all the time and when
immediately thereafter the appellant was apprehended and arrested by the police
officers and the informant was not similarly taken into custody, the only
logical conclusion is that the appellant right then and there found out that he
was the victim of an entrapment and that the informant was in collusion with
the police authorities.

There is, therefore, no reason why the prosecution could not and
did not present the informant as a prosecution witness.  He is the best witness to establish the
charge against the appellant who denies the charge.^[9]
As the appellant correctly observed, such a failure to present the informant as
a witness gives rise to the presumption that such evidence wilfully
suppressed would be adverse if produced.^[10]

On the other hand, assuming that the testimony
of Sgt. Carbonell is correct in that the poseur-buyer
was not the informant but Pat. Francisco Maniquiz,
then with more reason the theory of entrapment of the prosecution become even
more incredible.  The appellant did not
know Pat. Maniquiz.  It is improbable
that the appellant would risk selling marijuana to a person he met for the
first time.

Moreover, the transaction was allegedly consummated in a public
street within the view of the public including some teenagers.  The street light was bright and shining.  If the appellant was really a drug pusher, he
would not have so openly sold marijuana in such a public place within the view
of so many people.  He would have
attempted to conceal the transaction.  It
allegedly transpired in front of his house. 
Hence appellant could have asked the buyer to go up his house or behind
the house if only to insure its secrecy.

In the light of the shaky evidence of the prosecution, the
defense of the appellant consisting not only of a categorical denial of the
imputation against him but an assertion that it was a frame-up and that the
policemen attempted to extort money from him becomes significant.

Conrado Gabriel, uncle of the
appellant, testified that immediately after the arrest of the appellant by the
policemen, they asked the arresting policemen what crime the appellant
committed and they were told that he was a drugpusher
and that if they wanted his release, they must raise the amount of P5,000.00;
that he went home to raise the amount but was only able to bring P2,000.00;
that the policemen refused to accept the amount and insisted on P3,000.00
instead; and that he did not remember the name of said policemen.

The appellant corroborates the testimony of his uncle in that
when he was locked inside the cell, his uncle talked to the arresting officer
after which he was told by his uncle that they were asking for P5,000.00 as consideration for his release.  He told the policemen that they could not
afford such amount.  This prompted Sgt. Carbonell to lower their demand to P3,000.00.  The haggling took place inside the cell of
Police Precinct No. 5.

Natalia Gabriel, mother of the
appellant, also testified that in the early morning of April 16, 1987, Conrado Gabriel returned and told her that the arresting
policemen were demanding money for her son’s release; that she went to the
police headquarters that morning and learned that the arresting policemen were
Sgt. Carbonell, Patrolmen Balatbat
and Maniquiz; that they haggled for a lesser amount
and she was advised to talk to the police investigator, Pat. Eliseo Zamora; and that after several days she was able to
talk to Zamora who told her it was
too late because the case against her son was already filed.

The Court is disturbed by this evidence tending to show that
members of the law enforcement agencies who figured in this case tried to
extort money from the appellant and his family. 
Although it is true as observed by the court a quo that no
complaint was filed against said policemen by the appellant, it should be
understandable not only because the transaction was not consummated but that
appellant and his relatives would certainly think twice before filing such
complaint against the police.

This matter should be inquired into.  Three witnesses attest to the incident.  Said law enforcement agents should be held
liable if proven to be true.  By the same
token they should be given a chance to clear their names, if it is without
basis.  It is about time that shady
characters in police uniform should be weeded out.

There can be no dispute that drug pushing is a serious offense
that should be relentlessly ferreted out and the persons responsible
prosecuted.  They are peddlers of
destruction.  It cannot be denied that
one of the most effective means of their apprehension is through a
“buy-bust” operation with the assistance of an informant.  As above discussed, in such an instance, the
prosecution could easily prove its case with the informant as its witness.

On the other hand, it is a matter of fact that opium, marijuana
or any other prohibited drug can easily be planted by some corrupt law
enforcement agents on innocent victims as a convenient vehicle of
extortion.  And many such persons would
rather buy peace than risk a prosecution however false it maybe.

In any case the courts must be vigilant.  A handy defense in such cases is that it is a
frame-up and that the police attempted to extort from the accused.  Extreme caution must be exercised in
appreciating such defense.  It is just as
easy to concoct as a frame-up.  At all
times the police, the prosecution and the courts must be always on guard
against these hazards in the administration of criminal justice.

WHEREFORE, the decision appealed from is hereby REVERSED
and SET ASIDE and another judgment is hereby rendered
ACQUITTING appellant Aureo Rojo
y Gabriel, with costs de oficio.  Let a copy of this Decision be furnished the
National Police Commission (NAPOLCOM) for such appropriate action as may be
deemed proper against the members of the law enforcement agency alluded to in
this case.

SO ORDERED.

Narvasa, (Chairman), Griño-Aquino, and Medialdea, JJ., concur.

Cruz, J., concurring opinion.

^[1] Page 65, Rollo.

^[2]
Judge Procoro J. Donato of
Branch 12 of the Regional Trial Court of Manila wrote the decision.

^[3] Page 58, Rollo.

^[4] Page 71, Rollo.

^[5]
Pages 67-70, Rollo

^[6] Page 4, Appellant’s Brief.

^[7] T.S.N.
dated November 4, 1987,
page 4; page 6, Appellant’s Brief.

^[8] T.S.N.
dated December 15, 1987,
page 4.

^[9] People vs. Ale, 145 SCRA 50, at 62 (1986).

^[10] Section 5(e), Rule 131, Rules of Court.

Clean

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