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REPUBLIC OF THE PHILIPPINES

METROPOLITAN TRIAL COURT


NATIONAL CAPITAL JUDICIAL REGION
BRANCH 17, MANILA

PEOPLE OF THE PHILIPPINES


Plaintiff,

- versus - Criminal Case No. 353505


For: VIOLATION OF PD 1866
As amended by RA 8294

IBRAHIM ABBAS
y LINAO,
Accused.
x--------------------------------------x

MOTION TO DISMISS

Accused IBRAHIM ABBAS y LINAO, through the undersigned


counsel and unto this Honorable Court most respectfully avers that
herein accused respectfully moves for the dismissal of the above-entitled
case for Violation of PD 1866, as amended by RA 8294, on the ground
that the facts charged therein do not constitute an offense and in
support thereof most respectfully alleges that:

1. Accused is charged with Violation of P.D. No. 1866, as


amended by RA 8294 pending before this Honorable Court and Violation
of Republic Act 9165, Article II, Section 11 (Possession of Dangerous
Drugs) and Section 12 (Possession of Paraphernalia for Dangerous
Drugs) filed with the Regional Trial Court Branch 02 of Manila. Accused
was convicted and made to suffer the penalty of twelve (12) years, one (1)
day to seventeen (17) years of imprisonment by virtue of commitment
order issued by Hon. Alejandro Bijasa of RTC Branch 02, Manila, for the
crime of Section 11 and 12, Republic Act 9165 ;

2. With the enactment of Republic Act No. 8294 on July 6,


1997, the accused can no longer be convicted for violation for
Presidential Decree 1866 if possession of firearm is committed with
another crime. Section 1 of said law provides:
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 correcional in its maximum period and a fine of not
less that Fifteen thousand pesos (P15, 000.00) 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 ad
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)

The penalty of prision mayor in its minimum period


and a fine of Thirty thousand pesos (P30, 000.00) shall be
imposed if the firearm is classified as high powered firearm
which includes those with bores bigger in diameter than .38
caliber and 9 millimeter such as caliber .40, .41, .44, .45
and also lesser calibered firearms but considered powerful
such as caliber .357 and caliber .22 center-fire magnum and
other firearms with firing capability of full automatic and by
burst of two or three: Provided, however, That no other
crime was committed by the person arrested.
(Underscoring supplied)

3. The Supreme Court in interpreting the aforesaid law held in


the case of People vs. Walpan Ladjaalam, September 19, 2000 340
SCRA 140, that:

x x x x A simple reading thereof shows that if an


unlicensed firearm is used in the commission of any crime,
there can be no separate offense of simple illegal
possession of firearms. Hence, if the other crimes is
murder or homicide, illegal possession of firearms becomes
merely an aggravating circumstance, not a separate
offense. Since direct assault with multiple attempted
homicide was committed in this case, appellant can no
longer be held liable for illegal possession of firearms.

Moreover, penal laws are construed liberally in favor of


the accused (People vs. Atop 286 SCRA 157; People vs.
Deleverzo 289 SCRA 547). In this case, the plain meaning of
RA 8294s simple language of the new law demonstrates the
legislative intent to favor the accused (Taada vs, Yulo 61
Phil. 515; Regalado vs. Yulo 61 Phil. 173). Accordingly,
appellant cannot be convicted of two separate offense of
illegal possession of firearms and direct assault with
attempted homicide. Moreover, since the crime committed
was direct assault and not homicide or murder, illegal
possession of firearms cannot be deemed an aggravating
circumstance.

xxx xxx xxx

Just as unacceptable is the interpretation of the trial


court. We find no justification for limiting the proviso in the
second paragraph to murder and homicide. The law is
clear: the accused can be convicted of simple illegal
possession of firearms, provided that no other crime was
committed by the person arrested. If the intention of the
law in the second paragraph were to refer only to homicide
and murder, it should have expressly said so, as it did in
the third paragraph. Verily, where the law does not
distinguish, neither should we.

The Court is aware that this ruling effectively


exonerates appellant of illegal possession of an M-14 rifle,
an offense which normally carries a penalty heavier than
that for direct assault. While the penalty for the first is
prision mayor, for the second it is only prision correccional.
Indeed, the accused may evade conviction for illegal
possession of firearms by using such weapons in
committing an even lighter offense, like alarm and scandal
or slight physical injuries, both of which are punishable by
arresto menor. This consequence, however, necessarily
arises from the language of RA 8294, whose wisdom is not
subject to the Courts review. Any perception that the result
reached here appears unwise should be addressed to
Congress. Indeed, the Court has no discretion to give
statutes a new meaning detached from the manifest
intendment and language of the legislature. Our task is
constitutionally confined only to applying the law and
jurisprudence to the proven facts, and we have so in this
case.

x x x x x x x x x .

4. The Supreme Court in three more cases cited the same


jurisprudence when it acquitted an accused for illegal possession of
firearms in view of the accused perpetrating the aforesaid crime with
another crime. The highest court of the land further held in the three
cases the following:
Evangelista vs. Sistoza ( August 9, 2001 362 SCRA 563 )
It bears reiterating that this Courts interpretation of laws are
as much a part of the law of the land as letters of the laws
themselves. Meaning, our interpretation of Republic Act No. 8294
forms part o the said law. In view of the well-entrenched rule that
criminal laws shall be given retroactive effect if favorable to the
accused, petitioner Danilo Evangelista is deemed to have
committed only the crime of robbery which he has already served
more than the maximum period of the penalty imposed upon him.
PEOPLE vs. Garcia, ( January 15, 2002 373 SCRA 134 )
Accordingly, we are constrained to dismiss Crim. Case No.Q-
96-68049 and set aside the judgment of conviction therein since
accused-appellants Rotchel Lariba and Rodante Rogel cannot be
held liable for illegal possession of firearms and ammunitions there
being another crime--kidnapping for ransomwhich they were
perpetrating at the same time.

PEOPLE vs. Bernal, ( September 2, 2003 388 SCRA 211)


In the above-cited case of Ladjaalam, the appellant was
convicted by the trial court of (1) illegal possession of firearms, (2)
direct assault with multiple attempted homicide and (3) violation of
the dangerous drugs law. We acquitted him of the first crime
(illegal possession) but affirmed his conviction of the latter two. In
justifying the acquittal, we said inter alia that when the crime
was committed on September 24, 1997, the original language of PD
1866 had already been expressly superseded by RA 8294 x x x
and no conviction for illegal possession of firearms separate from
any other crime was thus possible.

In the present case, the illegal possession of firearms (as a


separate offense) was committed by accused-appellant before RA
8294 took effect. Since the amendment contained in RA 8294 is
favorable to him in the sense that it would mean his acquittal (from
the charge of illegal possession of firearms), then the law should be
given retroactive effect.

We cannot therefore affirm the conviction of accused-appellant for


illegal possession of firearm in Criminal Case No. 1647.

PEOPLE vs. Almeida (December 11, 2003 388 SCRA 211)


The Court, however, cannot sustain appellants conviction
for illegal possession of ammunition. The ammunition was not
found in the person of appellant. They were among the items seen
lying on the floor and Vanessa and Gilbert were in that same room
with appellant. Clearly, the evidence is insufficient to establish
that said ammunition belongs to appellant as it could have
belonged to the other two persons.

Furthermore, in any event, the Court has ruled in previous


cases that in view of the enactment of Republic Act No. 8294, there
can be no separate offense of illegal possession of firearms and
ammunition if there is another crime committed such as, in this
case, that of illegal possession of dangerous drugs

5. In the instant case, the term any crime may refer to the
case of Violation of Sections 11 and 12 of Republic Act No. 9165 which is
filed before this Honorable Court. R. A. 8294 does not state that the
firearm be used in committing another crime in order to extinguish the
crime of illegal possession of firearm. All it states is that the illegal
possession of firearm should not be penalized if committed with another
crime;

6. Pursuant to the aforecited provision of law and decision of


the highest court of the land, the charge of illegal possession of
unlicensed firearm should be dismissed as such offense cannot be tried
independently from the crime of Violation of Sections 11 and 12 of
Republic Act 9165.

PRAYER
WHEREFORE, premises considered, it is most respectfully prayed
of this Honorable Court that after due consideration, the case filed
against herein accused for Violation of PD 1866, as amended by RA
8294, be subsequently dismissed.

Other reliefs just and equitable under the premises are likewise
prayed for.

Manila, Philippines, 25 November 2005.

Department of Justice
PUBLIC ATTORNEYS OFFICE
Manila District Office
4th floor, Godino Building,
350 A. Villegas St., Ermita, Manila
By:

CAROLINE L. TOBIAS
Public Attorney II
NOTICE OF HEARING
Branch Clerk of Court ACP RAUL M. HUSMILLO
RTC Br.17 Rm. 325 Prosecutors Office
Manila Manila
Greetings!

Please take notice that the foregoing Motion to Dismiss will be


submitted for the kind consideration and approval of this Honorable
Court immediately upon receipt hereof.
CAROLINE L. TOBIAS
Copy furnished:
ACP RAUL M. HUSMILLO
Rm. 325 Prosecutors Office
Manila

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