1

2. Respondent is a Freelance Journalist doing research on Human Rights violations and the protection of the environment in Samar for the Alliance of Concerned Samareos (ACOS) and the Kapunungan han Gudti nga Parag-uma ha Weste han Samar (KAPAWA). 3. On February 13, 2011, having just completed his research task the previous day, respondent left the village center of Barangay Bay-ang, San Jorge, Samar at a little past 9 o clock in the morning, and headed for what the barrio folk call their port an unmarked quay by the river which was less than an hours walk via mountain trail, where a pump boat was scheduled to pick him up at the said place and bring him to San Jorge town proper. 4. Respondent was joined by Vicente Dacles, the Barangay Secretary, and several other residents of Bay-ang who were all going to town as well for some business. 5. Dacles was at the head of the pack, followed closely by respondent, while the rest, who were mostly women and children, were falling behind by at least a hundred (100) meters. 6. At around 10:00 a.m., as they were just some two hundred (200) meters away from their destination, they caught sight of a platoon of soldiers who motioned them (Dacles and respondent) to stop. Respondent at once noticed that the soldiers were resting and cooking by the left side of the trail. 7. One of the soldiers approached them alertly and asked where they came from and where they were going. Dacles said that they came from the village and that a pump boat was waiting for them nearby as they were headed for town. 8. The soldier then inquired if they knew where they could fetch water. Dacles turned around and pointed to an area somewhere, and gave the soldier brief directions on how to get there. Dacles even added that if it became difficult

to locate, the soldier could just ask the rest of their company who were lagging behind. The soldier then told them to carry on, and so they did. 9. Barely a minute after they had started walking again, another group of soldiers (this time merely a team) had appeared in front of them. One soldier asked the same questions Where did they come from? Where were they going? Dacles simply repeated the answers he gave earlier. 10. Dacles also told the soldier that they had already passed through the main body of the platoon and had in fact given the soldiers the directions where to get drinking water. The soldier told them they can go. 11. But just as they were turning their backs to him, the soldier again ordered them to halt. He was intently eyeing the mini-knapsack that respondent was carrying. He said: Ano yang nasa bag mo? 12. Before respondent could even reply, the soldier, in brisk movements, had un-slung the mini-knapsack from his shoulders and had zipped it open. It was respondent's computer notebook and some other complimentary gadgets he found inside the mini-knapsack. 13. The soldier was quite surprised by what he saw. Nasa bundok ka tapos may laptop ka? the soldier said. 14. The soldier and his team led them quickly back to where the main body of the platoon was. There the soldiers took turns doing body search on respondent. They emptied his pockets and his sling pouch; they checked his sides, ran their hands through every part of his body and lifted the hem of his shirt up to his neck looking for concealed weapons. They did not find any weapon. 15. One soldier handed respondent his computer and told him to turn it on. Respondent told them that the batteries had already drained out. Respondent pressed the power button to show them that the computer wont

boot. But another soldier scolded respondent for pressing the button saying that he might have consciously and slyly triggered the computer to self-destruct. 16. Then the soldiers, five to seven of them at a time, started to harangue respondent almost in unison, with raised voices and intermittent invectives and threats. They said: NPA ka! Mataas siguro ranggo mo kaya ka may laptop! Magingat ka sa mga kilos mo baka makatikim ka! Huwag kang tumakbo! Ayusin mo ang mga sagot mo kung ayaw mong masaktan! 17. Respondent tried to explain to them that he was doing research in the area but whatever he said was drowned it seemed by their intense excitement to badger and harass respondent. 18. This went on for several minutes until the other companions of respondent from Bay-ang finally arrived at the scene. 19. A soldier asked the women of the group if they knew respondent. The women said yes and that they were supposed to go to town with him. Another soldier butted in and shouted and berated the group, Mga sinungaling kayo, said the soldier, NPA ang taong ito. 20. An officer finally intervened. He introduced himself as the commanding officer of the platoon. He told respondent's companions that theyre all free anyway to go to where they were supposed to go, and the soldiers will only take with them the "Tagalog" (respondent). 21. When asked by the women where respondent would be brought to, the officer just told them to go. Hence, Barangay Secretary Dacles and the rest of the Bay-ang group were compelled to leave respondent with the soldiers and went straight to the port. 22. The officer approached respondent and gave his name, 2nd Lieutenant Jacob Madarang. He said that they would bring respondent to the headquarters of the Charlie Company of the 34th Infantry Batallion in Barangay Blanca Aurora.

At around 11:00 am, Madarang assigned respondent a place in the middle of the formation and the platoon began marching and passing through stretches of rocky and muddy terrain. 23. The group would on irregular intervals stop and rest for a few minutes. Respondent found out that Madarang was using these rests to try to contact his superiors to inform them of his arrest. The cellphone signal in the areas was so unstable or was simply absent that it took Madarang all of seven (7) hours to finally get to a position where a cellphone call was possible. 24. At 6:00 p.m. of February 13, 2011, respondent saw and heard Madarang talking to someone on his cellphone. He was consistent in addressing that someone as sir so respondent thought that he was in fact conversing with one of his superiors. 25. Respondent immediately got the drift of the said conversation. It seemed that Madarang was being told not to bring respondent anymore to the company headquarters, but just to get rid of him instead. Madarang on the other hand was sort of lobbying or politely insisting that it was wiser to bring respondent to headquarters for interrogation as he strongly felt that that they could extract from him some valuable information. Respondent also heard him say: Tagalog ito, sir. Baka taga-legal front ito ng national o mula sa isang national organ. 26. After the phone call, Madarang told his men that they would indeed bring respondent to the Charlie HQ in Barangay Blanca Aurora. He also commanded a soldier to tie respondent by the waist before they marched again. 27. An hour and a half later at another stop, Madarang ordered one of his men to give respondent a jacket, and so he was given one, a fatigue army upper garment, and he put it on. At first, respondent thought of it as some simple gesture of humanitarian concern on the part of the young lieutenant.

28. As soon, however. as they entered a village center (this was the barangay immediately before Barangay Blanca Aurora), respondent found out what the jacket was really all about. The soldier behind respondent, who was also the one holding his leash, suddenly placed his right arm upon respondent's shoulders. The act made it appear that this soldier and respondent were casually walking like pals as the platoon passed through the dimly lit streets of the village. The platoon had to make sure that no one in the barrio saw the unit with a captive. 29. The group arrived finally at Charlie HQ in Barangay Blanca Aurora at around 9:00 pm of February 13, 2011. Madarang formally turned respondent and his things over to his superior. The latter introduced himself to respondent as the company commander. Respondent is not so sure now, however, if he had given his name or his rank. At any rate his welcomed remarks confirmed without doubt respondent's earlier gut-feel. He said Pasalamat ka binuhay ka pa. Sabi ko kanina sa mga tao ko hwag ka nang dalhin dito at encounter. i-charge ka na lang sa

30. The company commander then told respondent to rest for a few minutes while waiting for the Battalion Commander. Being familiar with the rights of a person under arrest, respondent told him that it would be best to turn him over to the nearest police detachment immediately and that respondent would need a lawyer. The company commander didnt give respondent any answer as if the former didnt hear the latter. Somebody then took a picture of respondent using a cellphone. 31. While waiting for the battalion commander, respondent saw and heard an army officer briefing the personnel on camp regarding his arrest and detention. The officer stressed that no one outside the HQ or the immediate

community around the camp must be told that Charlie Company was holding respondent. The human rights groups he said would probably start searching for respondent the next day or the day after that and so they had to be really strict that respondent's presence in the HQ did not leak. 32. The battalion commander and his entourage arrived at around 10:00 to 10:30 pm of February 13, 2011. This also signaled the start of respondent's interrogation. At the outset, respondent reiterated that his arrest, detention and interrogation were all beyond the bounds set by law. Respondent said that if they are in any way contemplating on charging him with something, then they should just bring him to the nearest police detachment and that he would urgently be needing the assistance of his lawyer. An officer showed his irritation and loudly and emphatically said: Legal procedure kayo nang legal procedure eh kayo nga ang iligal! In that case, respondent said it would really be best for him to refuse to answer their questions. 33. The interrogation by at least eight (8) military persons taking turns commenced 10:30 p.m. of the 13th of February, 2011 and stretched up to 6:00 p.m. of the 15th of February, 2011. Within this span (more or less 44 hours) respondent was only allowed two (2) hours of sleep which was actually made possible because his interrogators themselves already got too tired and sleepy. 34. Respondent was subjected to various lines of questioning to which he would always remind his interrogators that he could only answer questions regarding basic personal data. Respondent's interrogators in turn would show gentle, patient persistence that alternated with not so veiled threats of physical harm and even death. They said that the only real road to respondent's safety is cooperation with the military. 35. On the 15th of February 2011, at around 6:00 p.m., Col. William Fonacier (whom respondent had only known as William after hearing another

officer address him as such) told respondent that they would bring him to the San Jorge Municipal Police Headquarters. They rode an SUV and it took them less than an hour to reach San Jorge PNP. 36. Upon arriving at the vicinity of San Jorge PNP, the colonel and the other officers went straight into the headquarters building, while respondent was left inside the vehicle with his guard soldiers. 37. After about 20 minutes, one soldier, who had earlier entered the said building with the colonel, returned to the vehicle and in an urgent tone asked respondent guard soldiers if they had brought the grenade. One of the soldiers in the SUV said yes, and took out from a small bag a grenade and gave it to the soldier who asked for it. The latter went back to the building quite in a hurry. It was at this time that respondent guessed and realized that he might just be charged with a crime that had something to do with "the grenade". 38. A few minutes more, respondent was led inside the PNP building. A police officer named "Lucero" received respondent and informed him that he is being charged with illegal possession of explosive. Respondent saw one soldier place the grenade on an office table and another police officer who was occupying the said table pick the explosive up and nonchalantly inspected it. "Lucero" then said that the blotter procedure could wait until morning, before the inquest in Calbayog City. 39. Meanwhile "Lucero" told respondent that he would be brought to the Gandara Hospital to be examined by a medico-legal practitioner. The colonel and his men drove respondent to the said hospital and there Lucero presented him to the medico-legal around 8:00 p.m. They then brought respondent back to San Jorge PNP. The colonel and his men made sure that respondent was securely locked up at the detention cell before leaving.

40. The young San Jorge PNP Chief, Police Inspector Oscar Pagulayan, Jr. started chatting with respondent from outside his detention cell. Respondent told him that he needed to contact his family by phone to inform them of his situation and whereabouts. The police chief said that he cant allow respondent to make that call. Respondent pleaded using different tact but mainly by invoking that he has the right to a phone call. The police chief countered by saying that he cant do anything because the colonel never mentioned anything about it. 41. On the 16th of February, 2011 at 7:30 a.m., respondent completed the blotter procedure. The police made respondent fill up some forms, took his fingerprints and mug shots. At around 8:00 a.m., the colonel and his men arrived at the San Jorge PNP. They were all in stylish casual civilian clothes. 42. The colonel talked briefly with the police officers then his group left for Calbayog City where the police told respondent earlier he would be brought for inquest. A few minutes after the colonel left, respondent was made to ride the police pick-up with his hands handcuffed behind his back. They arrived at the Calbayog City Hall of Justice at around 9:00 a.m. 43. At the Hall of Justice, the police escorts headed by "Lucero" led respondent inside the prosecutors office. They told respondent to wait while "Lucero" prepared the papers of his complainants. Some of the colonels men were also in that office. "Lucero" never attempted to explain to respondent the details of the procedure on his volition. When respondent asked some questions while he was talking to the prosecutors secretary, "Lucero" just flared up and told respondent to shut up. Respondent sensed that the presence of the colonel and his men was giving the police officer some undue pressure. 44. From what respondent gathered from "Lucero" and the secretarys Winaray conversation, there was some hitch in the inquest schedule. The stenographer was not available, according to the secretary. Worse, the

10

prosecutor was out and the secretary had no idea when he would be coming back. The secretary advised "Lucero" to go to another office and try to consult with some legal personnel there. 45. "Lucero" and respondent went to the said office, so did the colonel and his men. It was a relatively big office space with many tables and employees. "Lucero" consulted with some people and respondent heard that, in lieu of an inquest, he was advised to facilitate the filing of the complaint directly to the office of the judge. 46. "Lucero" then expressed his dilemma with the custodial detention in that he was apprehensive of bringing respondent back to San Jorge PNP. He said that they would have a problem with respondent's maintenance and that furthermore, he was not sure how they would perform in case the NPA tried to rescue respondent. 47. "Lucero" then asked if it were legally possible to hand respondent back to the military as he had a few hours earlier been briefed by the colonel that the 8th Infantry Division was willing to take respondent in under some special custodial arrangements. It was here that respondent decided to intervene. Respondent made sure that his voice was loud and clear for all the employees in that big office to hear. Respondent stood up and said that the idea was highly irregular and definitely illegal. Respondent then drew their attention towards the colonel and his men by pointing at their group while saying that these men in civilian clothes were the soldiers and officers who illegally arrested him and are now his complainants, and he would never allow them to take him into custody. 48. Respondent heard a lady employee remark, Ah, mga sundalo pala sila! and saw the approving, sympathetic glances and gestures of some of the employees. Then one employee told "Lucero" that respondent could not be

11

brought back to the military and the best alternative was to bring him to the subprovincial jail. 49. Then respondent said, in the same loud and clear voice that someone should tell "Lucero" that he is entitled to a phone call, a right that the San Jorge PNP deprived him of despite his pleas and despite the very critical situation that his family was in faraway Metro Manila. Another employee told "Lucero" that, yes, the San Jorge PNP should have allowed respondent to call his family. The employee, sensing that respondent still had more issues to present, told "Lucero" to bring respondent to the Public Attorneys Office (PAO). 50. At the PAO, respondent mentioned to one of the lawyers that he might need the service of one of their attorneys especially because he has yet to contact his family and his private lawyer thanks to the police and the militarys complete disregard of his rights. The colonel, as if trying to wash his hands, stood up and announced that hes willing to let respondent use his phone. So the colonel and respondent left the PAO and went outside the Hall of Justice. 51. Outside the Hall of Justice, the colonel gave his phone to respondent, who was able to contact his mother. But just as respondent was giving his mother the details of his situation, the colonel told respondent to end the call. He took his phone and left with his men. 52. After this the San Jorge policemen brought respondent to the subprovincial jail where he was remitted around 1:30 p.m. of February 16, 2011.

THE CASE 53. A Complaint for Illegal Possession of Explosives signed by San Jorge Chief of Police Oscar Pagulayan, Jr. and subscribed before Prosecutor II Virgilio B. Cabral on February 16, 2011 was filed against respondent before the Regional Trial Court of Gandara, Samar, Branch 41 at 10:30 a.m. of February

12

16, 2011 or seventy two (72) hours and thirty (30) minutes after respondent's arrest on February 13, 2011 at 10:00 a.m. Copy of the said Complaint is hereto attached as Annex "A". 54. Bases of the complaint were the following documents: a. Joint Affidavit of Arrest executed by 2Lt. Jacob B. Madarang, Cpl. Nicho Barredo and PFC Ranillo N. Villar executed on February 15, 2011 and subscribed before Prosecutor II Virgilio B. Cabral on February 16, 2011, a copy of which is hereto attached as Annex "B"; b. Belated Report dated "February 13, 2011" executed by 2Lt. Jacob B. Madarang and 1Lt. Reynaldo B. Geslaga, a copy of which is hereto attached as Annex "C"; c. Police Blotter Extract dated February 15, 2011 executed by San Jorge Chief of Police Oscar Pagulayan, Jr., a copy of which is hereto attached as Annex "D"; and, d. Message to Police Director (PD), Samar Provincial Police Office (PPO) dated February 16, 2011 executed by San Jorge Chief of Police Oscar Pagulayan, Jr., a copy of which is hereto attached as Annex "E". 55. On March 1, 2011, the Acting Presiding Judge of the Regional Trial Court of Gandara, Samar, Branch 41, Hon. Subanah E. Usman, instead of issuing a Commitment Order, issued an Order referring the case to the Office of the Provincial Prosecutor, Calbayog City for Preliminary Investigation. Copy of the said Order of March 1, 2011 is hereto attached as Annex "F". 56. On April 11, 2011, respondent, through his counsel, filed his Counter Affidavit. Copy of the said Counter Affidavit with complete Annexes is hereto attached as Annex "G". 57. On June 7, 2011, respondent received at the Calbayog City SubProvincial Jail a copy of the Resolution of Assistant Provincial Prosecutor Agustin M. Avalon dated April 20, 2011 recommending that an Information for ILLEGAL POSSESSION OF EXPLOSIVE in violation of R.A. 9516 be filed

13

against respondent with the proper court. Copy of the said Resolution dated April 20, 2011 is hereto attached as Annex "H". 58. On June 21, 2011, respondent filed a Motion for Reconsideration of the foregoing Resolution by registered mail. Copy of the Motion for Reconsideration is hereto attached as Annex "I". 59. On August 17, 2011, respondent's counsel received a copy of Resolution of the Assistant Provincial Prosecutor Agustin M. Avalon dated July 12, 2011 denying his Motion for Reconsideration. Copy of the said Resolution dated July 12, 2011 is hereto attached as Annex "J". 60. Hence, this Petition for Review.

ASSIGNMENT OF ERROR THE INVESTIGATING PROSECUTOR SERIOUSLY ERRED IN RECOMMENDING THAT AN INFORMATION FOR ILLEGAL POSSESSION OF EXPLOSIVE BE FILED AGAINST PETITIONERRESPONDENT IN COURT.

ARGUMENTS/DISCUSSION A. Respondent was illegally arrested. In his Resolution, the Investigating Prosecutor enumerated the ten (10) defenses of the respondent set up in his Counter-Affidavit, which are basically the violations of his constitutional, statutory and human rights committed by the military in his arrest and continued detention, to wit: "a. He was arrested without warrant while not committing any crime or doing anything illegal; b. He was not informed of the reason for his arrest at the time of his arrest; c. He was denied the right to counsel;

14

d. He was denied a phone call and prevented from contacting his family or his lawyer; e. He was subjected to prolonged interrogation for 44 hours; f. During tactical interrogation, he was physically and psychologically tortured; g. He was deprived of sleep, threatened, intimidated, coerced and forced to admit membership in the NPA; h. The grenade subject of the case was planted; i. The complaint against him was filed in court only after 72 hours and 30 minutes; j. He was detained in a military camp, which is not of civilian jurisdiction."

In addition, respondent has been detained at the Calbayog City SubProvincial Jail from February 16, 2011 up to the present without any Commitment Order issued by the court. However, the Investigating Prosecutor resolved only two (2) of the ten (10) foregoing defenses of respondent in arriving at his conclusion and

recommending the filing of an Information for Illegal Possession of Explosive against respondent in court, namely: "1) Whether or not the warrantless arrest of the respondent by the military personnel is lawful and in compliance of Section 5, Rule 113 of the Revised Rules of Criminal Procedure; 2) Whether or not this complaint was timely filed in court and in compliance of the mandates of Article 125 of the Revised Penal Code." In failing to resolve the other defenses/issues raised by respondent in his Counter Affidavit, the Investigating Prosecutor is conceding that indeed there was violation of respondent's constitutional, statutory and human rights by the military in his arrest and continued detention. The complainants military and police personnel are even admitting and supporting the fact of the violations of respondent's rights in the Joint Affidavit of Arrest and other documents submitted in this case.

15

In his Resolution, the Investigating Prosecutor made a finding that the warrantless arrest of the respondent was lawful and there is probable cause that the crime has been committed and was committed by the respondent. Primary basis for the Investigating Prosecutor's finding is the "presumption of regularity in the performance of official duty" provided for in Section 3 (m), Rule 131 of the Rules of Court. With all due respect, the presumption of regularity will NOT arise if there are serious irregularities in the conduct and procedures of the police and military personnel in the arrest and detention of the respondent. (People v. Tan, 432 PHIL. 171; People v. Labarias, 217 SCRA 483; People v. Dismuke, 234 SCRA 51). Moreover, when there are several related acts supposed to be performed by a public officer or employee in regard to a particular matter, the presumption of regularity in the performance of official functions would not arise and be considered as comprehending all the required acts. (Hernandez v. Navarro, 48 SCRA 44). In this case, respondent has claimed serious irregularities and violations of the law in his arrest, interrogation and detention. The police and military authorities are required to perform several acts in the arrest, detention and delivery of the respondent to judicial authorities. The Investigating Prosecutor has conceded and the police and military complainants have admitted irregularities in their conduct and procedure in the arrest, detention and interrogation of respondent. Among these irregularities in the procedure and violations of the law are: a. Respondent was arrested without warrant while not committing any crime or doing anything illegal;

16

b. Respondent was bodily frisked and his personal belongings searched and seized in connection with and pursuant to an illegal arrest; c. Respondent was not informed of the reason for his arrest at the time he was actually arrested; d. Respondent was not immediately brought to the nearest police station or jail after his arrest; e. Respondent was denied a phone call and prevented from contacting his family or his lawyer; f. Respondent underwent tactical interrogation without the presence of counsel; g. Respondent was subjected to prolonged interrogation for forty four (44) hours during which he was physically and psychologically tortured; h. Respondent was deprived of sleep, threatened, coerced and forced to admit membership in the NPA and the CPP; i. Respondent was detained in a military camp for forty four (44) hours and was brought to the nearest police station only after fifty two (52) hours from his arrest; j. Respondent was brought for inquest without the presence or assistance of counsel; k. The complaint for Illegal Possession of Explosive was filed in court without the required inquest or preliminary investigation; l. The complaint against respondent was filed in court only after seventy two (72) hours and thirty (30) minutes from his arrest; and, m. Respondent was detained at the Calbayog City Sub-Provincial Jail without any Commitment Order issued the court. Even if the respondent set up only the defense of denial, denial will prevail over the presumption of regularity, if there is a motive of the complainant to

17

falsely impute such a serious crime against respondent and the evidence of the complainant is weak. Thus"The oft-cited presumption of regularity in the performance of official functions cannot by itself affect the constitutional presumption of innocence enjoyed by an accused, particularly when the prosecution's evidence is weak. The evidence of the prosecution must be strong enough to pierce the shield of the presumptive innocence and to establish the guilt of the accused beyond reasonable doubt. And where the evidence of the prosecution is insufficient to overcome this presumption, necessarily, the judgment of conviction of the court a quo must be set aside. The onus probandi on the prosecution is not discharged by casting doubts upon the innocence of an accused, but by eliminating all reasonable doubts as to his guilt." (People v. Mirantes, 209 SCRA 179). "The Court's reliance on the presumption of regularity in the performance of official functions would not suffice to uphold petitioner's conviction. Once challenged by evidence, the presumption of regularity cannot be regarded as binding truth and cannot prevail over the presumption of innocence of accused. Although petitioner's defense is denial, which standing alone is inherently weak, the Court has repeatedly stressed that the conviction of an accused must rest on the strength of prosecution's evidence and not on the weakness of his defense." (Tejada v. People, ____). As stated in Belated Report of complainant 2Lt. Jacob B. Madarang dated February 13, 2011 (Annex C hereof) and in the Press Releases of the 8th Infantry Division on February 17, 2011 and May 11, 2011, the military's motive in falsely imputing such a serious offense against respondent is to be able to detain, interrogate and hold respondent without bail on the suspicion not merely as being a member of the NPA but being a member of the "Instruction Bureau of the National Education Department of the CPP-NPA-NDF's Central Committee" and his presence at the location is "to facilitate the reproduction of various propaganda of the CPP/NPA/ NDF materials such as "ANG BAYAN". Copy of the said Press Releases of February 17, 2011 and May 11, 2011 are hereto attached as Annexes "K" and L respectively.

18

B. The evidence against respondent was planted. Respondent is being charged with Illegal Possession of Explosive for allegedly having in his possession a hand grenade, which he tried to pull out from his pocket while already being questioned and harangue by the military. The military would want it to appear that respondent attempted to blow up a whole platoon of soldiers while he and his civilian companions were already being questioned by the military. Thus, in the 4th Paragraph of the Joint Affidavit of Arrest dated February 15, 2011 (Annex B hereof), it was claimed that respondent and his civilian companions were already being questioned by his military captors when (S)uddenly, he reached inside his front right pocket and took out a grenade. It is highly incredible, illogical, foolhardy and contrary to common sense and ordinary human experience that respondents military captors after confiscating his mini-knapsack containing his computer notebook and its accessories and complimentary gadgets and already questioning respondent on them, would not be able to see a hand grenade bulging at respondents front right pocket and respondent would then attempt to blow up the whole platoon of soldiers, his civilian companions surrounding them including himself. Moreover, in the Press Releases of the 8th ID dated February 17, 2011 and May 11, 2011 (Annexes "K" and L), the military stated and enumerated the things seized and confiscated from respondent as a laptop with complete accessories and spare battery, an external hard drive, internet USB, a cellphone, six pieces of SIM cards, P 4,800.00 cash and personal belongings. Granting arguendo, that a grenade was among the things seized and confiscated from respondent, the military did not made the proper procedure for securing and taking custody of these evidence such as, making an inventory of

19

the things seized and confiscated, marking them, taking photos these things and asked the barangay official who was present during the incident to sign as witness. The fact is the respondent was never questioned and interrogated regarding the grenade but only regarding the contents of his computer notebook. The grenade appeared only when respondent was brought to the San Jorge police headquarters on February 16, 20011 at 6:00 p.m. Furthermore, as discussed above, the search and seizure made on the body and personal belongings of respondent were in connection with and pursuant to an illegal arrest of the respondent. As such, any evidence obtained as a result thereof, is fruit of a poison tree and inadmissible as evidence in any proceeding. Likewise, in his Resolutions of April 20, 2011 and July 12, 2011 (Annexes H and J), the Investigating Prosecutor simply brushed aside the Counter Affidavit of respondent as "too long and in a narrative form" and his evidence and defenses presented and raised in his Counter Affidavit and Motion for Reconsideration to controvert and outweigh the claim of the military witnesses "must be made before a competent court, as the same is evidentiary in nature, which can be threshed out only in a full blown trial". With all due respect, preliminary investigation to determine probable cause is lodged in and the responsibility of the Investigating Public Prosecutor. In order to determine probable cause, the Investigating Prosecutor must consider and evaluate all the documents and evidence presented before him such as the complaint, affidavits, counter-affidavits, sworn statements, etc. because the role of the Public Prosecutor is not mainly to prosecute but essentially to do justice to every man and to assist the court in dispensing justice. Thus-

20

"The ultimate purpose of preliminary investigation is to secure the innocent against hasty, malicious, and oppressive prosecutions, and to protect him from open and public accusation of crime, from the trouble, expenses and anxiety of a public trial, and also to protect the State from useless and expensive prosecutions." (Albay Accredited Constructors Asso. v. Desierto, 480 SCRA 520). Preliminary investigation of criminal cases is intended to protect the accused from the inconvenience, expense and burden of defending himself in a formal trial until the reasonable probability of his guilt has first been ascertained in a fairly summary proceeding by a competent officer." (Beltran v. Dinopol, 502 SCRA 446). It is precisely the intention and purpose of the Acting Presiding Judge of the Regional Trial Court of Gandara, Samar, Branch 41, in issuing the Order dated March 1, 2011 (Annex F hereof) referring the case to the Office of the Provincial Prosecutor, Calbayog City to afford respondent his right to Preliminary Investigation and for the Investigating Prosecutor to conduct proper Preliminary Investigation. By ruling that the defenses and evidence presented by the respondent must be made before a competent court, as the same is evidentiary in nature, which can be threshed out only in a full blown trial, the Investigating Prosecutor has defeated the purpose and intention of the court and skirted his responsibility by throwing back the responsibility to the court. C. There was delay in the delivery of respondent to judicial authority. In his Resolution, the Investigating Prosecutor made a finding that the military consumed only 22 hours and 30 minutes of the reglementary period to deliver respondent to judicial authorities. The Investigating Prosecutor arrived at his finding by excluding from the reglementary period February 13, 2011 because it is a Sunday and February 14, 2011 because of the alleged cautious

21

movements of the arresting military elements to avoid being ambushed in returning to their company headquarters at Barangay Blanca Aurora, San Jorge, Samar and commenced counting the running of the reglementary period only at 8:00 o'clock in the morning of February 15, 2011. Article 125 of the Revised Penal Code, as amended, requires that the respondent must be delivered to the proper judicial authorities within thirty six (36) hours from his arrest. There is no dispute that respondent was arrested at 10:00 a.m. of February 13, 2011 and the complaint for Illegal Possession of Explosive was directly filed before the Regional Trial Court of Gandara, Samar Branch 41 only at 10:30 a.m. of February 16, 2011 or after a lapse of seventy two (72) hours and thirty (30) minutes. Granting arguendo, that February 13, 2011 should be excluded from the running of the reglementary period because it is a Sunday and a "no-office day", then the running of the reglementary period should commenced on the next working day, i.e. February 14, 2011, a Monday. In the case of Medina v. Oroco (18 SCRA 1168), cited with approval by the Investigating Prosecutor in his Resolution, the Court took notice of the fact that the accused was brought to court on the very first office day following the arrest. February 14, 2011 cannot be excluded from the running of the reglementary period as what the Investigating Prosecutor did. Granting that respondent was lawfully arrested, the last paragraph of Section 5, Rule 113 of the Rules of Court requires that the person lawfully arrested without a warrant shall forthwith be delivered to the nearest police station or jail and shall be proceeded against in accordance with Rule 112, Section 7. A police station or jail is different from the military headquarters at Barangay Blanca Aurora, San Jorge. Hence, the Investigating Prosecutor gravely erred when he excluded February 14, 2011 in the computation of the reglementary period of Article 125, R.P.C. to

22

prescribe by ratiocinating that the military had to first travel and bring the respondent to their military camp. Thus, in the case of Director Epimaco Velasco v. Court of Appeals (G.R. No. 118644, July 7, 1995) the Supreme Court stated: Xxx. Firstly, assuming that it was lawful, the facts disclose that the arresting officers failed to strictly comply with the last paragraph of Section 5, Rule 113 of the Rules of Court requiring that the person lawfully arrested without a warrant shall forthwith be delivered to the nearest police station or jail and shall be proceeded against in accordance with Section 7, Rule 112; and (2) Article 125 of the Revised Penal Code, as amended, providing that he be delivered to the proper judicial authorities within thirty-six hours, the crime with which Larkins was charged being punishable by an afflictive penalty. Although the arrest was made in Makati where there is a police station and a municipal [now city] jail, the accused was brought to the NBI Detention Cell at Taft Avenue, Manila, and though the complaint of the offended party was executed on 23 November 1994, it was not until 2 December 1994 that the said complaint was actually filed in court. Unless satisfactorily explained, the non-compliance by the arresting officers with the said provisions merits nothing but disapproval from the Court. In the performance of their duty and in their commendable pursuit to stamp out crimes and bring criminals to the bar of justice, law enforcement authorities should make no shortcuts, but must comply with all procedures to safeguard the constitutional and statutory rights of accused persons. The rule of law must always be upheld.1 What this Court said in Beltran vs. Garcia[35] needs to be repeated: "It certainly does not speak well of officialdom, whether civilian or military, if a person deprived of his liberty had to go to court before his rights are respected. The good name of the administration is jeopardized, without any fault on its part, by such inefficiency or inattention to duty. Every precaution should be taken against its repetition. Otherwise, the parties responsible for this state of affairs would justly lay themselves open to the accusation that the greatest danger to constitutional rights comes from public officials, men of zeal, concededly well-meaning, but without sufficient understanding of the implication of the rule of law." Moreover, it is incorrect for the Investigating Prosecutor to make a finding that that the military personnel who arrested respondent arrived at their company camp in Barangay Blanca Aurora already at about 10:00 o'clock in the evening of

23

February 14, 2011. Barangay Blanca Aurora is a barangay or two away from Barangay Bay-ang, where respondent was arrested. Despite the alleged cautious movements, it took the military personnel who arrested respondent about twelve (12) hours to travel from Barangay Bay-ang to Barangay Blanca Aurora and they arrived at their company camp at about 9:00 p.m. of February 13, 2011. This fact is confirmed by complainant 2Lt. Jacob Madarang, when made and executed his Belated Report on February 13, 2011. Respondent was brought to the company camp precisely for his tactical interrogation. Respondent's interrogation commenced from 10:30 p.m. of February 13, 2011 continuously up to 6:00 p.m. of February 15, 2011 or a span of about forty four (44) hours. Contrary to the findings of the Investigating Prosecutor that respondent was brought to the Provincial Police Office at Camp Lucban, Catbalogan City on February 15, 2011 and that it took the entire day of February 15, 2011 for the police authorities of San Jorge to do the preparations of documents for filing of the case in the fiscal's office for Inquest or in court, respondent was never brought to the Provincial Police Office and respondent was brought to the San Jorge Police Office only at 7:30 p.m. of February 15, 2011 as evidenced by the Message of COP Oscar Pagulayan, Jr. dated February 16, 2011 (Annex E hereof) and the Police Blotter Extract dated February 16, 2011 (Annex D hereof), which state that respondent was turned over at "151930H February 2011." The alleged absence of the Inquest Prosecutor or any Public Prosecutor on February 16, 2011 was just a ruse to enable the military and police authorities to directly file the Complaint before the court without the necessary Inquest or Preliminary Investigation. The filing of the Complaint was a Corrective

24

Complaint intended to correct irregularities in the arrest and detention of the

25

as

26