3/8/22, 9:10 PM SUPREME COURT REPORTS ANNOTATED VOLUME 546

SO ORDERED.

Puno (C.J.), Quisumbing, Ynares-Santiago, Sandoval-

Gutierrez, Carpio, Corona, Carpio-Morales, Azcuna, Tinga, Chico-
Nazario, Velasco, Jr., Nachura, Reyes and Leonardo-De Castro, JJ.,
concur.

Petition granted, joint judgment and resolution reversed and set

aside.

Notes.—A person can not be convicted of a crime with which he

was not charged. (Civil Service Commission vs. Lucas, 301 SCRA
560 [1999])
While the Civil Service Commission is not bound by technical
rules of procedure in administrative proceedings, this does not
preclude the CSC from considering a document’s technical defects
and the tardiness of its submission in weighing its probative value.
(Civil Service Commission vs. Ledesma, 471 SCRA 589 [2005])
——o0o—— 

G.R. No. 164815.  February 22, 2008.*

SR. INSP. JERRY C. VALEROSO, petitioner, vs. THE PEOPLE OF
THE PHILIPPINES, respondent.

Criminal Law; Illegal Possession of Firearms and Ammunition;

Elements.—In illegal possession of firearm and ammunition, the prosecution
has the burden of proving the twin elements of (1) the existence of the
subject firearm and ammunition, and (2) the fact that the accused who
possessed or owned the same does not have the corresponding license for it.

_______________

* THIRD DIVISION.

451

Same; Same; Evidence; Witnesses; Either the testimony of a

representative of, or a certification from, the Philippine National Police
(PNP) Firearms and Explosive Office attesting that a person is not a
licensee of any firearm would suffice to prove beyond reasonable doubt the

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second element of possession of illegal firearms.—As for petitioner’s lack of

authority to possess the firearm, Deriquito testified that a verification of the
Charter Arms Caliber .38 bearing Serial No. 52315 with the Firearms and
Explosives Division at Camp Crame revealed that the seized pistol was not
issued to petitioner. It was registered in the name of a certain Raul Palencia
Salvatierra of Sampaloc, Manila. As proof, Deriquito presented a
certification signed by Roque, the chief records officer of the same office.
The Court on several occasions ruled that either the testimony of a
representative of, or a certification from, the Philippine National Police
(PNP) Firearms and Explosive Office attesting that a person is not a licensee
of any firearm would suffice to prove beyond reasonable doubt the second
element of possession of illegal firearms. The prosecution more than
complied when it presented both.
Same; Same; Same; Same; Hearsay Evidence; Entries in Official
Records; The general rule is that a witness can testify only to those facts
which he knows of his personal knowledge, otherwise, the testimony is
objectionable for being hearsay; Entries in official records made in the
performance of his official duty by a public officer of the Philippines, or by a
person in the performance of a duty specifically enjoined by law, are prima
facie evidence of the facts therein stated.—The general rule is that a witness
can testify only to those facts which he knows of his personal knowledge;
that is, which are derived from his own perception. Otherwise, the testimony
is objectionable for being hearsay. On this score, the certification from the
Firearms and Explosives Division is an exception to the hearsay rule by
virtue of Rule 130, Section 44 of the Rules of Court which provides: Sec.
44. Entries in official records.—Entries in official records made in the
performance of his official duty by a public officer of the Philippines, or by
a person in the performance of a duty specifically enjoined by law, are
prima facie evidence of the facts therein stated. It may be true that the
contents of said certification are only prima facie evidence of the facts
stated there. However, the failure of petitioner to present controverting
evidence makes the presumption unrebutted. Thus, the presumption stands.

452

Same; Same; Same; Presumptions; Policemen; While public officers

like policemen are accorded presumption of regularity in the performance of
their official duties, it is only a presumption which may be overthrown by
evidence to the contrary; Where there was an unusual facility by which a
Memorandum Receipt was issued, which issuance utterly lacked the usual
necessary bureaucratic constraints, the same was issued under questionable
circumstances.—Although petitioner is correct in his submission that public
officers like policemen are accorded presumption of regularity in the
performance of their official duties, it is only a presumption; it may be
overthrown by evidence to the contrary. The prosecution was able to rebut
the presumption when it proved that the issuance to petitioner of the
Memorandum Receipt was anything but regular. SPO3 Timbol, Jr. testified
that he issued the Memorandum Receipt to petitioner based on the verbal
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instruction of his immediate superior, Col. Moreno. However, a reading of

Timbol’s testimony on cross-examination would reveal that there was an
unusual facility by which said receipt was issued to petitioner. Its issuance
utterly lacked the usual necessary bureaucratic constraints. Clearly, it was
issued to petitioner under questionable circumstances.
Same; Same; Same; The existence of an unlicensed firearm may be
established by testimony, even without its presentation at trial; There may
also be conviction where an unlicensed firearm is presented during trial but
through inadvertence, negligence, or fortuitous event (for example, if it is
lost), it is not offered in evidence, as long as there is competent testimony as
to its existence.—Contrary to petitioner’s claim, the subject firearm and its
five (5) live ammunition were offered in evidence by the prosecution. Even
assuming arguendo that they were not offered, petitioner’s stance must still
fail. The existence of an unlicensed firearm may be established by
testimony, even without its presentation at trial. In People v. Orehuela, 232
SCRA 82 (1994), the non-presentation of the pistol did not prevent the
conviction of the accused. The doctrine was affirmed in the recent case of
People v. Malinao, 423 SCRA 34 (2004). As previously stated, the existence
of the subject firearm and its five (5) live ammunition were established
through the testimony of SPO2 Disuanco. Yuson also identified said firearm.
Petitioner even admitted its existence. We hasten to add that there may also
be conviction where an unlicensed firearm is presented during trial but
through inadvertence, negligence, or fortuitous event (for example, if it is
lost), it is

453

not offered in evidence, as long as there is competent testimony as to its

existence.
Same; Same; Ex Post Facto Laws; As a general rule, penal laws
should not have retroactive application, lest they acquire the character of an
ex post facto law; Although an additional fine of 15,000.00 is imposed by
R.A. No. 8294, the same is still advantageous to the accused, considering
that the imprisonment is lowered to prision correccional in its maximum
period from reclusion temporal in its maximum period to reclusion perpetua
under P.D. No. 1866.—As a general rule, penal laws should not have
retroactive application, lest they acquire the character of an ex post facto
law. An exception to this rule, however, is when the law is advantageous to
the accused. According to Mr. Chief Justice Araullo, this is “not as a right”
of the offender, “but founded on the very principles on which the right of the
State to punish and the commination of the penalty are based, and regards it
not as an exception based on political considerations, but as a rule founded
on principles of strict justice.” Although an additional fine of P15,000.00 is
imposed by R.A. No. 8294, the same is still advantageous to the accused,
considering that the imprisonment is lowered to prision correccional in its
maximum period from reclusion temporal in its maximum period to
reclusion perpetua under P.D. No. 1866.

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PETITION for review on certiorari of a decision of the Court of

Appeals.
   The facts are stated in the opinion of the Court.
  Pablito A. Carpio for petitioner.
  The Solicitor General for respondent.

REYES, R.T.,  J.:

THE law looks forward, never backward. Lex prospicit, non
respicit. A new law has a prospective, not retroactive, effect.1
However, penal laws that favor a guilty person, who is not a

_______________

1 New Civil Code, Art. 4.

454

habitual criminal, shall be given retroactive effect.1-a These are the

rule, the exception and exception to the exception on effectivity of
laws.
  Ang batas ay tumitingin sa hinaharap, hindi sa nakaraan.
Gayunpaman, ang parusa ng bagong batas ay iiral kung ito ay
pabor sa taong nagkasala na hindi pusakal na kriminal.
  We apply the exception rather than the rule in this petition for
review on certiorari of the decision of the Court of Appeals (CA),
affirming with modification that of the Regional Trial Court (RTC)
in Quezon City, finding petitioner liable for illegal possession of a
firearm.
The Facts
On July 10, 1996, at around 9:30 a.m., SPO2 Antonio M.
Disuanco of the Criminal Investigation Division, Central Police
District Command, received a dispatch order2 from the desk officer.3
The order directed him and three (3) other policemen to serve a
warrant of arrest4 issued by Judge Ignacio Salvador against
petitioner Sr. Insp. Jerry C. Valeroso in a case for kidnapping with
ransom.5
  After a briefing, the team conducted the necessary surveillance
on petitioner, checking his hideouts in Cavite, Caloocan, and
Bulacan.6 Eventually, the team proceeded to the Integrated National
Police (INP) Central Station at Culiat, Que-

_______________

1-a Revised Penal Code, Art. 22 provides: Retroactive effect of penal laws.—Penal
laws shall have a retroactive effect in so far as they favor the person guilty of a felony,
who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this
Code, although at the time of the publication of such laws a final sentence has been
pronounced and the convict is serving the same.
2 Exhibit “D.”

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3 TSN, November 6, 1996, pp. 4-5, 9.

4 Exhibit “B.”
5 TSN, November 6, 1996, pp. 4, 7, 9.
6 Id., at p. 11.

455

zon City, where they saw petitioner as he was about to board a

tricycle.7 SPO2 Disuanco and his team approached petitioner.8 They
put him under arrest, informed him of his constitutional rights, and
bodily searched him.9 Found tucked in his waist10 was a Charter
Arms, bearing Serial Number 5231511 with five (5) live
ammunition.12
  Petitioner was then brought to the police station for
questioning.13
  A verification of the subject firearm at the Firearms and
Explosives Division at Camp Crame revealed that it was not issued
to petitioner but to a certain Raul Palencia Salvatierra of Sampaloc,
Manila.14 Epifanio Deriquito, the records verifier, presented a
certification15 to that effect signed by Edwin C.

_______________

7 Id., at p. 3. INP is now Philippine National Police.

8 Id., at p. 4.
9 Id., at pp. 5-6.
10 TSN, November 6, 1996, pp. 14-15; TSN, December 11, 1996, p. 10.
11 Exhibit “E.”
12 Exhibits “E-1” to “E-5.”
13 TSN, November 6, 1996, p. 6.
14 TSN, December 11, 1996, p. 21.
15 Exhibit “C.”
PNPFED                                      12 Jul[y] 1996
CERTIFICATION
TO WHOM IT MAY CONCERN:
This is to certify that [the] Revolver, Charter Arms, Cal. 38 with serial
number 52315 is registered to RAUL PALENCIA SALVATIERA of
Sampaloc, Manila, acquired thru transfer f[ro]m Wilburn Irwin Lucasan per
index card d[a]t[e]d 10 December 1990.
This certification is issued for whatever legal purpose it may serve.
FOR THE CHIEF, FED:
                                  EDWIN C[.] ROQUE (Sgd.)

                              P/Sr. Inspector

                              Chief, Records Br[.]

456

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Roque, chief records officer of the Firearms and Explosive

Division.16
  Petitioner was then charged with illegal possession of firearm
and ammunition under Presidential Decree (P.D.) No. 1866,17 as
amended. The Information read:

“That on or about the 10th day of July, 1996, in Quezon City,

Philippines, the said accused without any authority of law, did then and
there willfully, unlawfully and knowingly have in his/her possession and
under his/her custody and control
One (1) cal. 38 “Charter Arms” revolver bearing Serial No. 52315 with
five (5) live ammo.
without first having secured the necessary license/permit issued by the
proper authorities.
CONTRARY TO LAW.
Quezon City, Philippines, July 15, 1996.
                                                       (Sgd.)
                                              GLORIA VICTORIA C. YAP
                                            Assistant City Prosecutor18

With the assistance of his counsel de parte, Atty. Oscar

Pagulayan, petitioner pleaded not guilty when arraigned on October
9, 1996.19 Trial on the merits ensued.
SPO2 Disuanco and Deriquito testified for the prosecution in the
manner stated above.

_______________

16 TSN, December 11, 1996, pp. 19-20.

17  Entitled “An Act Codifying the Laws on Illegal/Unlawful Possession,
Manufacture, Dealing in, Acquisition or Disposition of Firearms, Ammunition or
Explosives or Instruments Used in the Manufacture of Firearms, Ammunition or
Explosives, and Imposing Stiffer Penalties for Certain Violations Thereof, and for
Relevant Purposes.” This law was issued by President Ferdinand E. Marcos on June
29, 1983. See Zuño, Sr. v. Dizon, A.M. No. RTJ-91-752, June 23, 1993, 223 SCRA
584, 598.
18 Rollo, p. 35.
19 Id., at p. 38.

457

Upon the other hand, the defense version was supplied by the
combined testimonies of petitioner Sr. Insp. Jerry C. Valeroso, SPO3
Agustin R. Timbol, Jr. and Adrian Yuson.
Petitioner recounted that on July 10, 1996, he was fast asleep in
the boarding house of his children located at Sagana Homes,
Barangay New Era, Quezon City.20 He was roused from his slumber
when four (4) heavily armed men in civilian clothes bolted the
room.21 They trained their guns at him22 and pulled him out of the
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room. They then tied his hands and placed him near the faucet.23
The raiding team went back inside and searched and ransacked the
room.24 SPO2 Disuanco stood guard outside with him.25 Moments
later, an operative came out of the room and exclaimed, “Hoy, may
nakuha akong baril sa loob!”26
Petitioner was told by SPO2 Disuanco that “we are authorized to
shoot you because there’s a shoot to kill order against you, so if you
are planning do so something, do it right now.”27 He was also told
that there was a standing warrant for his arrest.28 However, he was
not shown any proof when he asked for it.29 Neither was the raiding
group armed with a valid search warrant.30
According to petitioner, the search done in the boarding house
was illegal. The gun seized from him was duly licensed and covered
by necessary permits. He was, however, unable to present the
documentation relative to the firearm because it

_______________

20 TSN, February 19, 1997, pp. 19-21.

21 Id., at p. 21.
22 Id.
23 Id., at p. 22.
24 Id., at pp. 3, 6.
25 TSN, March 17, 1997, p. 5.
26 Id., at p. 4.
27 Id., at p. 10.
28 Id., at p. 11.
29 Id., at p. 12.
30 Id., at p. 14.

458

was confiscated by the police. Petitioner further lamented that when

he was incarcerated, he was not allowed to engage the services of a
counsel. Neither was he allowed to see or talk to his family.31
Petitioner contended that the police had an axe to grind against
him. While still with the Narcotics Command, he turned down a
request of Col. Romulo Sales to white-wash a drug-related
investigation involving friends of the said police officer. Col. Sales
was likewise subject of a complaint filed with the Ombudsman by
his wife. Col. Sales was later on appointed as the head of the unit
that conducted the search in his boarding house.32
SPO3 Timbol, Jr. of the Narcotics Command testified that he
issued to petitioner a Memorandum Receipt dated July 1, 199333
covering the subject firearm and its ammunition. This was upon the
verbal instruction of Col. Angelito Moreno. SPO3 Timbol identified
his signature34 on the said receipt.35
Adrian Yuson, an occupant of the room adjacent to where
petitioner was arrested, testified that on July 10, 1996, two (2)
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policemen suddenly entered his room as he was preparing for

school.36 They grabbed his shoulder and led him out.37 During all
those times, a gun was poked at him.38 He was asked where
petitioner was staying. Fearing for his life, he pointed to petitioner’s
room.39
Four (4) policemen then entered the room.40 He witnessed how
they pointed a gun at petitioner, who was clad only in his

_______________

31 Id., at pp. 21-22.

32 TSN, March 17, 1997, pp. 22-26.
33 Exhibit “1.”
34 Exhibit “1-A.”
35 TSN, June 4, 1996, pp. 2-6.
36 TSN, August 4, 1997, p. 7.
37 Id., at p. 8.
38 Id.
39 Id., at pp. 8-9.
40 Id., at p. 9.

459

underwear.41 He also witnessed how they forcibly brought petitioner

out of his room.42 While a policeman remained near the faucet to
guard petitioner, three (3) others went back inside the room.43 They
began searching the whole place. They forcibly opened his locker,44
which yielded the subject firearm.45

RTC and CA Dispositions

On May 6, 1998, the trial court found petitioner guilty as

charged, disposing as follows:

“WHEREFORE, the Court hereby finds the accused guilty beyond

reasonable doubt of Violation of Section 1 of Presidential Decree No. 1866
as amended by Republic Act No. 8294 and hereby sentences him to suffer
the penalty of prision correccional in its maximum period or from 4 years, 2
months and 1 day as minimum to 6 years as maximum and to pay the fine in
the amount of Fifteen Thousand Pesos (P15,000.00).
The gun subject of this case is hereby ordered confiscated in favor of the
government. Let the same be put in trust in the hands of the Chief of the
PNP.
SO ORDERED.”46

Petitioner moved to reconsider47 but his motion was denied on

August 27, 1998.48 He appealed to the CA.
On May 4, 2004, the appellate court affirmed with modification
the RTC disposition. The fallo of the CA decision reads:

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_______________

41 Id., at p. 10.
42 Id.
43 Id., at p. 11.
44 Id., at p. 12.
45 Id.
46 Rollo, p. 44.
47 Exhibit “E.”
48 Exhibit “F.”

460

“Verily, the penalty imposed by the trial court upon the accused-
appellant is modified to 4 years and 2 months as minimum up to 6 years
as maximum.
WHEREFORE, with the foregoing MODIFICATION as to the
penalty, the decision appealed from is hereby AFFIRMED in all other
respects.
SO ORDERED.”49

His motion for reconsideration50 having been denied through a

Resolution dated August 3, 2004,51 petitioner resorted to the present
petition under Rule 45.
Issues
Petitioner raises the following issues for Our consideration:

I.  THE HONORABLE COURT OF APPEALS COMMITTED

SERIOUS ERRORS OF LAW IN AFFIRMING THE CONVICTION OF
PETITIONER DESPITE THE ABSENCE OF PROOF BEYOND
REASONABLE DOUBT.
II.  THE HONORABLE COURT OF APPEALS COMMITTED
SERIOUS ERRORS OF FACT AND LAW IN SUSTAINING THE
LEGALITY OF THE SEARCH AND THE VALIDITY AND
ADMISSIBILITY OF THE EVIDENCE OBTAINED THEREFROM
DESPITE THE OVERWHELMING PROOF THAT THE SAME IS THE
FRUIT OF THE POISONOUS TREE.
III.  THE HONORABLE COURT OF APPEALS COMMITTED
SERIOUS ERRORS OF LAW IN NOT UPHOLDING THE REGULARITY
AND VALIDITY SURROUNDING THE ISSUANCE OF THE
MEMORANDUM RECEIPTS (SIC) IN FAVOR OF PETITIONER WHICH
PROVES HIS INNOCENCE OF THE CRIME CHARGE (SIC).52 (Italics
supplied)

_______________

49 Rollo, p. 31.
50 Exhibit “I.”
51 Exhibit “B.”

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52 Rollo, p. 125.

461

Our Ruling
In illegal possession of firearm and ammunition, the prosecution
has the burden of proving the twin elements of (1) the existence of
the subject firearm and ammunition, and (2) the fact that the accused
who possessed or owned the same does not have the corresponding
license for it.53
The prosecution was able to discharge its burden.
The existence of the subject firearm and its ammunition was
established through the testimony of SPO2 Disuanco.54 Defense
witness Yuson also identified the firearm.55 Its existence was
likewise admitted by no less than petitioner himself.56
As for petitioner’s lack of authority to possess the firearm,
Deriquito testified that a verification of the Charter Arms Caliber .38
bearing Serial No. 52315 with the Firearms and Explosives Division
at Camp Crame revealed that the seized pistol was not issued to
petitioner. It was registered in the name of a certain Raul Palencia
Salvatierra of Sampaloc, Manila.57 As proof, Deriquito presented a
certification signed by Roque, the chief records officer of the same
office.58
The Court on several occasions ruled that either the testimony of
a representative of, or a certification from, the Philippine National
Police (PNP) Firearms and Explosive Office attesting that a person
is not a licensee of any firearm would suffice to prove beyond
reasonable doubt the second element

_______________

53 Padilla v. Court of Appeals, G.R. No. 121917, March 12, 1997, 269 SCRA
402; Mallari v. Court of Appeals, G.R. No. 110569, December 19, 1996, 265 SCRA
456; People v. Damaso, G.R. No. 93516, August 12, 1992, 212 SCRA 547.
54 TSN, November 6, 1996, pp. 4, 7, 9.
55 TSN, August 4, 1997, p. 12.
56 TSN, March 17, 1997, pp. 14-15, 19.
57 TSN, December 11, 1996, p. 21.
58 Id., at pp. 19-20.

462

of possession of illegal firearms.59 The prosecution more than

complied when it presented both.
The certification is outside the
scope of the hearsay rule.

The general rule is that a witness can testify only to those facts
which he knows of his personal knowledge; that is, which are

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derived from his own perception.60 Otherwise, the testimony is

objectionable for being hearsay.61 

_______________

59 People v. Taan, G.R. No. 169432, October 30, 2006, 506 SCRA 219; Ungsod v.
People, G.R. No. 158904, December 16, 2005, 478 SCRA 282; People v. Lazaro,
G.R. No. 112090, October 26, 1999, 317 SCRA 435, citing Padilla v. Court of
Appeals, G.R. No. 121917, March 12, 1997, 269 SCRA 402; Rosales v. Court of
Appeals, G.R. Nos. 106229-30, March 15, 1996, 255 SCRA 123; People v. Orehuela,
G.R. Nos. 108780-81, April 29, 1994, 232 SCRA 82. See also Mallari v. Court of
Appeals, supra note 53; People v. Solayao, G.R. No. 119220, September 20, 1996,
262 SCRA 255.
60 Rules of Court, Rule 130, Sec. 36.
61  The United States Federal Rule of Evidence defines hearsay as “a statement,
other than one made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.” Cleary, E.W., McCormick on
Evidence (1984), 3rd ed., p. 729, citing Federal Rule of Evidence 801(c).
Accordingly, hearsay evidence is objected to due to the following reasons:
Oath. Among the earliest of the criticisms of hearsay, and one often
repeated in judicial opinions down to the present, is the objection that the out-
of-court declarant who made the hearsay statement commonly speaks or
writes without the solemnity of the oath administered to witnesses in a court
of law. The oath may be important in two aspects. As a ceremonial and
religious symbol it may induce in the witness a feeling of special obligation to
speak the truth, and also it may impress upon the witness the danger of
criminal punishment for perjury, to which the judicial oath or an equivalent
solemn affirmation would be a prerequisite condition. x x x
Personal presence at trial. Another objection early asserted and repeated
of late is the want of opportunity, in re-

463

On this score, the certification from the Firearms and Explosives

Division is an exception to the hearsay rule by virtue of Rule 130,
Section 44 of the Rules of Court which provides:

“Sec.  44.  Entries in official records.—Entries in official records made

in the performance of his official duty by a public officer of the Philippines,
or by a person in the performance of a duty specifically enjoined by law, are
prima facie evidence of the facts therein stated.”

It may be true that the contents of said certification are only

prima facie evidence of the facts stated there. However, the failure
of petitioner to present controverting evidence makes the
presumption unrebutted. Thus, the presumption stands.

_______________

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spect to the out-of-court declarant, for observation of his demeanor, with the
light that this may shed on his credibility, that would be afforded if he were a
witness on the stand.

The solemnity of the occasion and possibility of public disgrace can

scarcely fail to impress the witness, and falsehood no doubt becomes more
difficult if the person against whom directed is present.
Moreover, personal presence eliminates the danger that in the oral
reporting of an out-of-court statement that the witness reporting the statement
may do so inaccurately. It seems probable that the reporting of words spoken
is subject to special dangers of inaccuracy beyond the fallibility common to
all reproduction from memory of matters of observation, and this seems a
substantial danger in the admission of hearsay. x x x
Cross-examination. It would be generally agreed today that
noncompliance with the third condition is the main justification for the
exclusion of hearsay. This is the lack of any opportunity for the adversary to
cross examine the absent declarant whose out-of-court statement is reported
by the witness. x x x In perhaps his most famous remark, Wigmore described
cross-examination as “beyond any doubt the greatest legal engine ever
invented for the discovery of truth.” (Underscoring supplied) (Id., at pp. 727-
728.)

464

Petitioner, however, raises several points which he says entitles

him to no less than an acquittal.
The assessment of credibility of witnesses
lies with the trial court.

First, petitioner says that the seizure of the subject firearm was
invalid. The search was conducted after his arrest and after he was
taken out of the room he was occupying.62
This contention deserves scant consideration.
Petitioner’s version of the manner and place of his arrest goes
into the factual findings made by the trial court and its calibration of
the credibility of witnesses. However, as aptly put by Justice Ynares-
Santiago in People v. Rivera:63

“x x x the manner of assigning values to declarations of witnesses on the

witness stand is best and most competently performed by the trial judge who
had the unmatched opportunity to observe the witnesses and assess their
credibility by the various indicia available but not reflected on record. The
demeanor of the person on the stand can draw the line between fact and
fancy or evince if the witness is telling the truth or lying through his teeth.
We have consistently ruled that when the question arises as to which of the
conflicting versions of the prosecution and the defense is worthy of belief,
the assessment of the trial courts are generally viewed as correct and
entitled to great weight. Furthermore, in an appeal, where the culpability or
innocence of the accused depends on the issue of credibility of witnesses and

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the veracity of their testimonies, findings of the trial court are given the
highest degree of respect if not finality.”64 (Italics supplied)

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62 Rollo, pp. 8, 136.

63  433 Phil. 343; 384 SCRA 12 (2002), citing People v. Sanchez, G.R. Nos.
121039-45, January 25, 1999, 302 SCRA 21; People v. Librando, 390 Phil. 543; 335
SCRA 232 (2000); People v. Deleverio, G.R. Nos. 118937-38, April 24, 1998, 289
SCRA 547; People v. Zaballero, G.R. No. 100935, June 30, 1997, 274 SCRA 627.
64 People v. Rivera, id., at p. 352; p. 20.

465

The trial court found the prosecution version worthy of credence and
belief. We find no compelling reason not to accept its observation on
this score.
Worth noting is the fact that petitioner is a ranking police officer
who not only claims to be highly decorated,65 but have effected a
number of successful arrests66 as well. Common sense would dictate
that he must necessarily be authorized to carry a gun. We thus agree
with the Office of the Solicitor General that framing up petitioner
would have been a very risky proposition. Had the arresting officers
really intended to cause the damnation of petitioner by framing him
up, they could have easily “planted” a more incriminating evidence
rather than a gun. That would have made their nefarious scheme
easier, assuming that there indeed was one.
The pieces of evidence show that
petitioner is not legally authorized

to possess the subject firearm and

its five (5) ammunition.

Second, petitioner insists that he is legally authorized to possess

the subject firearm and its ammunition on the basis of the
Memorandum Receipt issued to him by the PNP Narcotics
Command.67
Although petitioner is correct in his submission that public
officers like policemen are accorded presumption of regularity in the
performance of their official duties,68 it is only a presumption; it
may be overthrown by evidence to the contrary. The prosecution was
able to rebut the presumption when it

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65 Rollo, p. 61.
66 TSN, March 17, 1997, p. 25.
67 Rollo, pp. 11-12, 138.
68 Gutang v. People, 390 Phil. 805, 817-818; 335 SCRA 479, 492 (2000), citing
People v. William, G.R. No. 93712, June 15, 1992, 209 SCRA 808; People v.

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Rumeral, G.R. No. 86320, August 5, 1991, 200 SCRA 194. See also Rules of Court,
Rule 131, Sec. 3(m).

466

proved that the issuance to petitioner of the Memorandum Receipt

was anything but regular.
SPO3 Timbol, Jr. testified that he issued the Memorandum
Receipt to petitioner based on the verbal instruction of his
immediate superior, Col. Moreno.69 However, a reading of Timbol’s
testimony on cross-examination70 would reveal that

_______________

69 TSN, June 4, 1997, pp. 3-6.

70 Id., at pp. 7-11.

FISCAL:  I am asking you why your office likewise issued [a] Memo Receipt if he
[i.e., Colonel Angelito Moreno] normally issue (sic) a firearm for [an] officer of
the PNP?
A:  Because our office has also authorized us to issue.
Q:  And who authorized your office?
A:  It is our Commanding Officer, Sir.
Q:  And who authorized the Commanding Officer?
INTERPRETER:
    Witness cannot answer.
Q:  Where does the Commanding Officer derive his authority?
A:  What I know is that the Commanding Officer is authorized to [issue] firearm that
will be issued to a PNP Officer but I do not know who gave the authority to our
officer.
    x x x x
Q:  As such, do you keep inventory of such supplies?
A:  Yes, Sir.
Q:  Do you have the inventory of this particular gun, the original?
A:  Yes, Sir.
Q:  Do you have that inventory with you, that inventory of such gun, the Memo
Receipt?
A:  That firearm was not in my custody.
Q:  But you said a while ago it is with you, which is which, do you have or do you
not have the listing of such inventory?
A:  None, Sir.

467

there was an unusual facility by which said receipt was issued to

petitioner. Its issuance utterly lacked the usual necessary
bureaucratic constraints. Clearly, it was issued to petitioner under
questionable circumstances.

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Failure to offer an unlicensed firearm as

evidence is not fatal provided there is
competent testimony as to its existence.
Third, petitioner claims that the subject firearm and ammunition
should have been excluded as evidence because they were not
formally offered by the prosecution71 in violation of Section 34,
Rule 132 of the Rules of Court.72
We note that petitioner contradicted himself when he argued for
the validity of the Memorandum Receipt and, at the same time, for
the exclusion in evidence of the subject firearm and its ammunition.
Petitioner’s act may result to an absurd

_______________

    x x x x
FISCAL:  Mr. Witness, other than this case, were there any instances where you
issued Memo Receipt as verbally directed by your alleged Commanding Officer
Moreno?
A:  Yes, Sir, I’m only a RSO since November 1993.
Q:  Precisely, 1991 to 1993, for a period wherein you claimed you hold an office of
RSO, has (sic) this the only time you issued?
A:  Many time[s], Sir.
COURT:  Let’s clarify this. The Court understands to (sic) your previous answer that
this is the first time that you have done this procedure of issuing guns to an
officer. Are you changing that this is the first time and not many times?
A:  That is the only first (sic) time, as instructed by the Commanding Officer, Your
Honor. (Italics supplied)

71 Rollo, pp. 11, 137-138.

72 Sec.  34.  Offer of evidence.—The court shall consider no evidence which has
not been formally offered. The purpose for which the evidence is offered must be
specified.

468

situation where the Memorandum Receipt is declared valid, while

the subject firearm and its ammunition which are supposedly
covered by the Memorandum Receipt are excluded as evidence.
That would have made the Memorandum Receipt useless.
In any case, petitioner’s contention has no leg to stand on.
Contrary to petitioner’s claim, the subject firearm73 and its five
(5) live ammunition74 were offered in evidence by the prosecution.75
Even assuming arguendo that they were not offered, petitioner’s
stance must still fail. The existence of an unlicensed firearm may be
established by testimony, even without its presentation at trial. In
People v. Orehuela,76 the

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73 Exhibit “E.”
74 Exhibits “E-1” to “E-5.”
75 TSN, February 19, 1997, p. 14.
76 G.R. Nos. 108780-81, April 29, 1994, 232 SCRA 82, 95-96.
As Mr. Justice Feliciano held for the Court:
x  x  x Upon the other hand, we note also that the allegedly unlicensed
murder weapon was not presented in evidence by the prosecution. What the
prosecution did present to show absence of a license or permit to possess the
firearm used to kill Teoberto, was a certification issued by the Bohol Regional
Headquarters of the Integrated National Police, dated 20 December 1989,
x x x:
x x x x
We consider that the certification was adequate to show that the firearm
used by Modesta Orehuela in killing Teoberto Cañizares was a firearm which
Orehuela was not licensed to possess and to carry outside his residence on the
night that Teoberto Cañizares was shot to death. That that firearm was a .38
caliber pistol was shown by the testimony and report of NBI Ballistician
Bonifacio Ayag. When the above circumstances are taken together with the
testimony of the eye-witness that Modesto Orehuela was in fact in possession
of a firearm and used the same to kill Teoberto Cañizares, we believe that
accused Orehuela was properly found guilty of aggravated or qualified illegal
possession of firearm and ammunition. (Italics supplied)

469

non-presentation of the pistol did not prevent the conviction of the

accused.
The doctrine was affirmed in the recent case of People v.
Malinao.77
As previously stated, the existence of the subject firearm and its
five (5) live ammunition were established through the testimony of
SPO2 Disuanco.78 Yuson also identified said firearm.79 Petitioner
even admitted its existence.80
We hasten to add that there may also be conviction where an
unlicensed firearm is presented during trial but through
inadvertence, negligence, or fortuitous event (for example, if it is
lost), it is not offered in evidence, as long as there is competent
testimony as to its existence.
Penal and civil liabilities
Petitioner was charged with the crime of illegal possession of
firearms and ammunition under the first paragraph of Section 1 of
P.D. No. 1866, as amended. It provides that “[t]he penalty of
reclusion temporal in its maximum period to reclusion perpetua
shall be imposed upon any person who shall unlawfully
manufacture, deal in, acquire, dispose, or possess any firearm, part
of firearm, ammunition or machinery, tool or instrument used or
intended to be used in the manufacture of any firearm or
ammunition.”

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P.D. No. 1866, as amended, was the governing law at the time
petitioner committed the offense on July 10, 1996. However, R.A.
No. 8294 amended P.D. No. 1866 on July 6, 1997,81
 

_______________

77 G.R. No. 128148, February 16, 2004, 423 SCRA 34. See also People v. Taan,
supra note 59; People v. Taguba, 396 Phil. 366; 342 SCRA 199 (2000).
78 TSN, November 6, 1996, pp. 4, 7, 9.
79 TSN, August 4, 1997, p. 12.
80 TSN, March 17, 1997, pp. 14-15, 19.
81 People v. Lazaro, supra note 59.

470

during the pendency of the case with the trial court. The present law
now states:

“SECTION  1.  Unlawful Manufacture, Sale, Acquisition, Disposition

or Possession of Firearms or Ammunition or Instruments Used or Intended
to be Used in the Manufacture of Firearms or Ammunition.—The penalty of
prision correccional in its maximum period and a fine of not less than
Fifteen Thousand Pesos (P15,000) shall be imposed upon any person who
shall unlawfully manufacture, deal in, acquire, dispose, or possess any low-
powered firearm, such as rimfire handgun, .380 or .32 and other firearm of
similar firepower, part of firearm, ammunition, or machinery, tool or
instrument used or intended to be used in the manufacture of any firearm or
ammunition: Provided, That no other crime was committed.” (Underscoring
supplied)

As a general rule, penal laws should not have retroactive

application, lest they acquire the character of an ex post facto law.82
An exception to this rule, however, is when the law is

_______________

82 Mejia v. Pamaran, G.R. Nos. L-56741-42, April 15, 1988, 160 SCRA 457, 472.
An ex post facto law is one which:
1.  Makes criminal an act done before the passage of the law and which
was innocent when done, and punishes such an act;
2.  Aggravates a crime, or makes it greater than it was, when committed;
3.  Changes the punishment and inflicts a greater punishment than the law
annexed to the crime when committed;
4.  Alters the legal rules of evidence, and authorizes conviction upon less
or different testimony than the law required at the time of the commission of
the offense;
5.  Assuming to regulate civil rights and remedies only, in effect imposes
penalty or deprivation of a right for something which when done was lawful;

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and
6.  Deprives a person accused of a crime of some lawful protection to
which he has become entitled, such as the protection of a former conviction or
acquittal, or a proclamation of amnesty.

471

advantageous to the accused. According to Mr. Chief Justice

Araullo, this is “not as a right” of the offender, “but founded on the
very principles on which the right of the State to punish and the
commination of the penalty are based, and regards it not as an
exception based on political considerations, but as a rule founded on
principles of strict justice.”83
Although an additional fine of P15,000.00 is imposed by R.A.
No. 8294, the same is still advantageous to the accused, considering
that the imprisonment is lowered to prision correccional in its
maximum period84 from reclusion temporal in its maximum period
to reclusion perpetua85 under P.D. No. 1866.
Applying the Indeterminate Sentence Law, prision correccional
maximum which ranges from four (4) years, two (2) months and one
(1) day to six (6) years, is the prescribed penalty and will form the
maximum term of the indeterminate sentence. The minimum term
shall be one degree lower, which is prision correccional in its
medium period (two [2] years, four [4] months and one [1] day to
four [4] years and

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83  People v. Moran, 44 Phil. 387, 408 (1923), citing Fiore, Irre­troactividad e
Interpretacion de las Leyes.
84  Reyes, L.B., The Revised Penal Code, Book II, 2001 ed., p. 1021. PRISION
CORRECCIONAL IN ITS MAXIMUM PERIOD.—4 years, 2 months and 1 day to 6
years
Minimum : 4 years, 2 months and 1 day to 4 years, 9 months and 10 days
Medium : 4 years, 9 months and 11 days to 5 years, 4 months and 20 days
Maximum : 5 years, 4 months and 21 days to 6 years
85 Id., at p. 1026. RECLUSION TEMPORAL IN ITS MAXIMUM PERIOD TO
RECLUSION PERPETUA.—17 years, 4 months and 1 day to reclusion perpetua
Minimum : 17 years, 4 months and 1 day to 18 years and 8 months
Medium : 18 years, 8 months and 1 day to 20 years
Maximum : Reclusion perpetua

472

two [2] months).86 Hence, the penalty imposed by the CA is correct.

The penalty of four (4) years and two (2) months of prision
correccional medium, as minimum term, to six (6) years of prision
correccional maximum, as maximum term, is in consonance with

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the Court’s ruling in Gonzales v. Court of Appeals87 and Barredo v.

Vinarao.88
 As to the subject firearm and its five (5) live ammunition, their
proper disposition should be made under Article 45 of the Revised
Penal Code89 which provides, among others, that the proceeds and
instruments or tools of the crime shall be confiscated and forfeited in
favor of the government.
WHEREFORE, the Decision of the Court of Appeals dated May
4, 2004 is AFFIRMED in full.
SO ORDERED.

Ynares-Santiago (Chairperson), Austria-Martinez, Chico-

Nazario and Nachura, JJ., concur.

_______________

86 Id., at p. 1021. PRISION CORRECCIONAL IN ITS MEDIUM PERIOD.—2

years, 4 months and 1 day to 4 years and 2 months
Minimum : 2 years, 4 months and 1 day to 2 years, 11 months and 10 days
Medium : 2 years, 11 months and 11 days to 3 years, 6 months and 20 days
Maximum : 3 years, 6 months 21 days to 4 years and 2 months.
87 343 Phil. 297; 277 SCRA 518 (1997).
88 G.R. No. 168728, August 2, 2007, 529 SCRA 120.
89  Art.  45.  Confiscation and forfeiture of the proceeds or instruments of the
crime.—Every penalty imposed for the commission of a felony shall carry with it the
forfeiture of the proceeds of the crime and the instruments or tools with which it was
committed.
Such proceeds and instruments or tools shall be confiscated and forfeited in favor
of the Government, unless they be the property of a third person not liable for the
offense, but those articles which are not subject of lawful commerce shall be
destroyed. (Italics supplied)

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