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Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 127107 October 12, 1998

PETER PAUL DIMATULAC and VERONICA DIMATULAC, petitioners,

vs.
HON. SESINANDO VILLON in his capacity as Presiding Judge of the Regional Trial Court of Pampanga,
Branch 54; HON. TEOFISTO GUINGONA, in his capacity as Secretary of Justice; MAYOR SANTIAGO YABUT,
SERVILLANO YABUT, MARTIN YABUT and FORTUNATO MALLARI, respondents.

DAVIDE, JR., J.:

The issues raised by petitioners in their Memorandum1 and by the Office of the Solicitor General in its
Comment2 in this special civil action for certiorari, prohibition and mandamus under Rule 65 of the Rules of
Court filed by petitioners, children of the deceased Police Officer 3 (PO3) Virgilio Dimatulac of Masantol,
Pampanga, may be summarized as follows:

A. WHETHER THE OFFICE OF THE PROVINCIAL PROSECUTOR COMMITTED

GRAVE ABUSE OF DISCRETION IN: (1) GIVING DUE COURSE TO THE MOTION FOR
REINVESTIGATION BY PRIVATE RESPONDENTS AGAINST WHOM WARRANTS OF
ARREST WERE ISSUED BUT WHO HAD NOT YET BEEN BROUGHT INTO THE
CUSTODY Of THE LAW; and (2) FILING THE INFORMATION FOR HOMICIDE
DESPITE KNOWLEDGE OF THE APPEAL FROM SAID PROSECUTOR'S
RESOLUTION TO THE OFFICE OF THE SECRETARY OF JUSTICE.

B. WHETHER PUBLIC RESPONDENT JUDGE ACTED IN EXCESS OF JURISDICTION

IN PROCEEDING WITH THE ARRAIGNMENT AND IN DENYING PETITIONERS'
MOTIONS TO SET ASIDE ARRAIGNMENT AND RECONSIDERATION THEREOF
DESPITE HIS KNOWLEDGE OF THE PENDENCY OF THE APPEAL AND THE
SUBMISSION OF VITAL EVIDENCE TO PROVE THAT MURDER AND NOT HOMICIDE
WAS COMMITTED BY THE ACCUSED.

C. WHETHER PUBLIC RESPONDENT SECRETARY OF JUSTICE COMMITTED

GRAVE ABUSE OF DISCRETION IN RECONSIDERING HIS ORDER FINDING THAT
THE CRIME COMMITTED WAS MURDER AND DIRECTING THE PROVINCIAL
PROSECUTOR TO AMEND THE INFORMATION FROM HOMICIDE TO MURDER.

The records and the pleadings of the parties disclose the antecedents.

On 3 November 1995, SPO3 Virgilio Dimatulac was shot dead at his residence in Barangay San Nicolas,
Masantol, Pampanga.

On 5 November 1995, a complaint for Murder was filed before the Municipal Circuit Trial Court (MCTC) of
Macabebe-Masantol in Macabebe, Pampanga, by SPO1 Renato Layug of the Masantol Police Station against
private respondents Mayor Santiago Yabut, Martin Yabut, Servillano Yabut, Evelino David, Justino Mandap,
Casti David, Francisco Yambao, Juan Magat, Arturo Naguit, Fortunato Mallari, Jesus de la Cruz, Joselito
Miranda, SPO3 Gilberto Malabanan, Aniano Magnaye, Vladimir Yumul, a certain "Danny," and a certain
"Koyang/Arding." The complaint was docketed as Criminal Case No. 95-360. After conducting a preliminary
examination in the form of searching questions and answers, and finding probable cause, Judge Designate
Serafin B. David of the MCTC issued warrants for the arrest of the accused and directed them to file their
counter-affidavits.

Only accused Evelino David, Justino Mandap, Juan Magat and Francisco Yambao were arrested; while only
Francisco Yambao submitted his counter affidavit.3

On 1 December 1995, after appropriate proceedings, Judge David issued a Resolution4 in Criminal Case No.
95-360 finding reasonable ground to believe that the crime of murder had been committed and that the
accused were probably guilty thereof. His findings of fact and conclusions were as follows:

That on or about November 3, 1995, all the accused under the leadership of Mayor Santiago
"Docsay" Yabut, including two John Does identified only as Dan/Danny and Koyang/Arding,
went to Masantol, Pampanga for the purpose of looking for a certain PO3 Virgilio Dimatulac.

At first, the accused, riding on [sic] a truck, went to the Municipal Hall of Masantol, Pampanga
inquiring about PO3 Virgilio Dimatulac. Thereafter, they went to the house of Mayor Lacap for
the purpose of inquiring [about] the [the location of the] house of PO3 Virgilio Dimatulac, until
finally, they were able to reach the house of said Virgilio Dimatulac at San Nicolas, Masantol,
Pampanga.

Upon reaching the house of PO3 Virgilio Dimatulac, the truck the accused were all riding,
stopped and parked in front of the house of said PO3 Virgilio Dimatulac, some of the accused
descended from the truck and positioned themselves around the house while others stood by
the truck and the Mayor stayed [in] the truck with a bodyguard.

Accused Billy Yabut, Kati Yabut and Francisco Yambao, went inside the house of Virgilio
Dimatulac [and] were even offered coffee.

[A]ccused Yabut brothers (Kati and Billy) strongly suggested to Virgilio Dimatulac to go down to
see the Mayor outside in front of his house to say sorry.

[W]hen Virgilio Dimatulac went down his house, suddenly [a] gun shot was heard and then, the
son of Virgilio Dimatulac, Peter Paul, started to shout the following words: "What did you do to
my father?!"

One of the men of Mayor "Docsay" Yabut shot Virgilio Dimatulac, and as a consequence, he
died; and before he expired, he left a dying declaration pointing to the group of Mayor "Docsay"
Yabut as the one responsible.

That right after Virgilio Dimatulac was shot, accused "Docsay" Yabut ordered his men to go on
board the truck and immediately left away leaving Virgilio Dimatulac bleeding and asking for
help.

On their way home to Minalin, accused Santiago "Docsay" Yabut gave money to accused John
Doe Dan/Danny and Francisco "Boy" Yambao was asked to bring the accused John Doe to
Nueva Ecija which he did.

Further, accused Santiago "Docsay" Yabut told his group to deny that they ever went to
Masantol.

The court, after having conducted preliminary examination on the complainant and the
witnesses presented, [is] satisfied that there is a [sic] reasonable ground to believe that the
crime of murder was committed and that the accused in conspiring and confederating with one
another are probably guilty thereof.

Circumstantial evidence strongly shows the presence of conspiracy.

That in order not to frustrate the ends of justice, warrants of arrest were issued against
Santiago Yabut, Martin Yabut, Servillano Yabut, Francisco Yambao, Avelino David, Casti David,
Catoy Naguit, Fortunato Mallari, Boy dela Cruz, Lito Miranda and Juan Magat with no bail
recommended.

However, with respect to accused Dan/Danny and Koyang/Arding, the court directed the police
authorities to furnish the court [a] description personae of the accused for the purpose of
issuing the needed warrant of arrest.

The accused were furnish [sic] copies of the complaint and affidavits of witnesses for them to
file their counter-affidavits in accordance to [sic] law.
 As of this date, only accused Francisco "Boy" Yambao filed his counter-affidavit and all the
others waived the filing of the same.

A close evaluation of the evidence submitted by the accused Francisco Yambao which the court
finds it [sic] straightforward and more or less credible and seems to be consistent with truth,
human nature and [the] natural course of things and lack of motives [sic], the evidence of guilt
against him is rather weak [compared to] the others, which [is why] the court recommends a
cash bond of P50,000.00 for his provisional liberty, and the court's previous order of no bail for
said accused is hereby reconsidered.

WHEREFORE, premises considered, the Clerk of Court is directed to forward he entire records
of the case to the Office of the Provincial Prosecutor of Pampanga for further action, together
with the bodies of accused Francisco Yambao and Juan Magat to be remanded to the provincial
Jail of Pampanga.5 (emphasis supplied)

In a sworn statement,6 petitioner Peter Paul Dimatulac narrated that Mayor Santiago Yabut, accompanied by
a number of bodyguards, went to the residence of PO3 Virgilio Dimatulac to talk about a problem between
the Mayor and Peter Paul's uncle, Jun Dimatulac. Virgilio warmly welcomed the group and even prepared
coffee for them. Servillano and Martin Yabut told Virgilio to come down from his house and apologize to the
Mayor, but hardly had Virgilio descended when Peter Paul heard a gunshot. While Peter Paul did not see
who fired the shot, he was sure it was one of Mayor Yabut's companions. Peter Paul opined that his father
was killed because the latter spoke to the people of Minalin, Pampanga, against the Mayor, Peter Paul added
in a supplemental statement (Susog na Salaysay) 7 that he heard Mayor Yabut order Virgilio killed.

It his Sinumpaang Salaysay,8 Police Officer Leopoldo Soriano of the Masantol Municipal Police Station in
Masantol, Pampanga, declared that on 3 November 1995, between 3:30 and 4:00 p.m., while he was at the
polite station, three men approached him and asked for directions to the house of Mayor Epifanio Lacap.
Soriano recognized one of the men as SPO1 Labet Malabanan of Minalin, Pampanga. The group left after
Soriano gave them directions, but one of the three returned to ask whether PO3 Virgilio Dimatulac was on
duty, to which Soriano replied that Dimatulac was at home. The group left on board a military truck headed
for San Nicolas, Masantol, Pampanga. Later that day, SPO2 Michael Viray received a telephone call at the
police station reporting that someone had shot Virgilio Dimatulac.

Thereafter, Pampanga Assistant Provincial Prosecutor Sylvia Q. Alfonso-Flores conducted a

reinvestigation. However, it is not clear from the record whether she conducted the same motu proprio or
upon motion of private respondents Santiago Yabut, Servillano Yabut and Martin Yabut (hereafter YABUTs).
All of the accused who had not submitted their counter-affidavits before the MCTC, except accused
"Danny" and "Koyang/Arding," submitted their counter-affidavits to Assistant Provincial Prosecutor
Alfonso Flores.

In her Resolution dated 29 January 1996, 9 Assistant Provincial Prosecutor Alfonso-Flores found that the
YABUTs and the assailant Danny, to the exclusion of the other accused, were in conspiracy with one
another, but that the offense committed was only homicide, not murder. In support of such finding, Alfonso-
Flores reasoned thus:

The complainant in this case charges the crime of Murder qualified by treachery. It must be
noted that to constitute treachery, two conditions must be present, to wit, 1) the employment of
the [sic] means of execution were give [sic] the person attacked no opportunity to defend
himself or to retaliate; and 2) the means of execution were deliberately or consciously adopted .
...

In the instant case, the presence of the first requisite was clearly established by the evidence,
such that the attack upon the victim while descending the stairs was so sudden and
unexpected as to render him no opportunity to defend himself or to retaliate. However, the
circumstances, as portrayed by witness Peter Paul Dimatulac, negate the presence of the
second requisite. According to the said witness, the victim was already descending when
Mayor Yabut commanded the assailant to shoot him, and immediately thereafter, he heard the
gunshot. This would therefore show that the assailant did not consciously adopt the position of
the victim at the time he fired the fatal shot. The command of Mayor Yabut to shoot came so
sudden as to afford no opportunity for the assailant to choose the means or method of attack.
The act of Mayor Yabut in giving the command to shoot further bolster[s] the fact that the
conspirator did not concert the means and method of attack nor the manner thereof. Otherwise
there would have been no necessity for him to give the order to the assailant. The method and
manner of attack was adopted by the assailant at the spur of the moment and the vulnerable
position of the victim was not deliberately and consciously adopted. Treachery therefore could
not be appreciated and the crime reasonably believe[d] to have been committed is Homicide as
no circumstance would qualify the killing to murder.
Alfonso-Flores then ruled:

WHEREFORE, in view of the foregoing, it is hereby recommended that:

1. An information be filed with the proper court charging Santiago,

Servillano and Martin all surnamed Yabut, and one John Doe alias
Danny as conspirators in the crime of Homicide;

2. The case be dismissed against accused Evelino David, Justino

Mandap a.k.a. Casti David, Francisco Yambao, Juan Magat, Arturo
Naguit, Bladimir Dimatulac, Fortunato Mallari, Aniano Magnaye, Gilberto
Malabanan, Jesus dela Cruz and Joselito Miranda.

Bail of P20,000.00 for each of the accused is likewise recommended.

The Resolution discloses that Alfonso-Flores conducted a hearing on 11 January 1996 and clarificatory
questions were propounded only to Peter Paul Dimatulac.

On 23 February 1996, before the Information for homicide was filed, complainants, herein petitioners,
appealed the resolution of Alfonso-Flores to the Secretary of the Department of Justice (DOJ). 10 They
alleged in their appeal that:

1. THE ASSISTANT PROVINCIAL PROSECUTOR NOT ONLY ERRED IN RULING

THAT THERE WAS NO TREACHERY TO QUALIFY THE CRIME TO MURDER, BUT
LIKEWISE ERRED IN NOT APPRECIATING THE PRESENCE OF OTHER QUALIFYING
CIRCUMSTANCES, TO WIT:

(A) THAT THE ACCUSED COMMITTED THE CRIME WITH THE AID OF
ARMED MEN AND WITH THE USE OF A PERSON TO INSURE OR
AFFORD IMPUNITY;

(B) THAT THE CRIME WAS COMMITTED IN CONSIDERATION OF A

PRICE, REWARD, OR PROMISE;

(C) THAT THE CRIME WAS COMMITTED ON THE OCCASION OF A

DESTRUCTIVE CYCLONE, WHEN THE SUPER-TYPHOON "ROSING"
WAS RAGING ON NOVEMBER 3, 1995;

(D) THAT THE CRIME WAS COMMITTED WITH EVIDENT

PREMEDITATION;

2. THAT THE HONORABLE INVESTIGATING ASSISTANT PROSECUTOR ERRED IN

DISMISSING THE COMPLAINT AGAINST FORTUNATO MALLARI AND FRANCISCO
YAMBAO BY RULING OUT CONSPIRACY WITH THE YABUT BROTHERS AS
AGAINST FORTUNATO MALLARI AND NOT CHARGING FRANCISCO YAMBAO AS
AN ACCESSORY TO MURDER.

To refute Alfonso-Flores' finding that the means of execution were not deliberately adopted, petitioners
asserted that the meeting of the accused and the victim was not accidental as the former purposely
searched for the victim at the height of a typhoon, while accused Mayor Santiago Yabut even remarked to
his co-accused "Danny," "Dikitan mo lang, alam mo na kung ano ang gagawin mo, bahala ka na" (Just stay
close to him, you know what to do). Thus, Danny positioned himself near the stairs to goad the victim to
come out of his house, while Fortunato Mallari represented to the deceased that the latter was being invited
by a certain General Ventura. When the victim declined the invitation by claiming he was sick, accused
Servillano Yabut persuaded the victim to come down by saying, "[T]o settle this matter, just apologize to the
Mayor who is in the truck." In view of that enticement, the victim came down, while Danny waited in
ambush. To emphasize the accused's resolve to kill the deceased, petitioners further narrated that when the
deceased ran away after the first shot, the gunman still pursued him, while Mayor Santiago Yabut, who was
a doctor, kept away at a safe distance and told everyone in the truck, "Tama na, bilisan ninyo," (That's
enough, move quickly) without giving medical assistance to the deceased and without exerting any effort to
arrest the gunman.

The Office of the Provincial Prosecutor of Pampanga was furnished with a copy of the Appeal.

On 26 February 1996, Provincial Prosecutor Jesus Y. Manarang issued a Resolution 11 ordering the release
of accused Evelino David, Justino Mandap, Juan Magat and Arturo Naguit (who were then detained) in view
of the aforementioned resolution of Alfonso-Flores, which, as stated in the order, the Provincial Prosecutor
approved "on February 7, 1996."
On 28 February 1996, an Information 12 for Homicide, signed by Assistant Provincial Prosecutor Flores and
Provincial Prosecutor Jesus Y. Manarang, was filed before Branch 55 of the Regional Trial Court (RTC) in
Macabebe, Pampanga, against the YABUTs and John Doe alias "Danny Manalili" and docketed as Criminal
Case No. 96-1667(M). The accusatory portion of the information read as follows:

That on or about the 3rd day of November, 1995, in the municipality of Masantol, province of
Pampanga, Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring and confederating together and mutually helping one another, with
deliberate intent to take the life of PO3 Virgilio A. Dimatulac, did then and there wilfully,
unlawfully and feloniously shoot the said PO3 Virgilio A. Dimatulac on his abdomen with the
use of a handgun, thereby inflicting, upon him a gunshot wound which cause[d] the death of
the said victim.

All contrary to law.

The Information, although dated 29 January 1996 was signed by Provincial Prosecutor Manarang on
"2/27/96", i.e., a day before its filing in court.

On 28 February 1996, Judge Reynaldo V. Roura, presiding judge of Branch 55, approved the cash bonds of
the YABUTs, each in the amount of P20,000.00, and recalled the warrants for their arrest. 13

On 29 February 1996, Atty. Amado Valdez, who had entered his appearance as private prosecutor, filed two
(2) motions with the trial court: (1) a Motion to Issue Hold Departure Order Against All Accuseds14 [sic]; and
an (2) Urgent Motion to Defer Proceedings, 15 copies of which were furnished the Office of the Provincial
Prosecutor of Pampanga. The second motion was grounded on the pendency of the appeal before the
Secretary of Justice and a copy thereof was attached to the motion. Judge Roura set the motions for
hearing on 8 March 1996. 16

On 7 March 1996, Judge Roura ordered the arrest of the remaining accused, Danny Manalili. 17

On 8 March 1996, the YABUTs filed their opposition 18 to the Motion to Issue Hold Departure Order and the
Motion to Defer Proceedings. The YABUTs asserted that, as to the first, by posting bail bonds, they
submitted to the jurisdiction of the trial court and were bound by the condition therein to "surrender
themselves whenever so required by the court, and to seek permission from the court should any one of
them desire to travel;" and, as to the second, the pendency of the appeal before the Secretary of Justice
was not a ground to defer arraignment; moreover, the trial court had to consider their right to a speedy trial,
especially since there was no definite date for the resolution of the appeal. Then invoking this Court's
rulings in Crespo v. Mogul 19 and Balgos v. Sandiganbayan, 20 the YABUTs further asserted that petitioners
should have filed a motion to defer the filing of the information for homicide with the Office of the Provincial
Prosecutor, or sought, from the Secretary of Justice, an order directing the Provincial Prosecutor to defer
the filing of the information in court.

In a Reply 21 to the opposition, the private prosecution, citing Section 20 of Rule 114 of the Rules of Court,
insisted on the need for a hold-departure order against the accused; argued that the accused's right to a
speedy trial would not be impaired because the appeal to the Secretary of Justice was filed pursuant to
Department Order No. 223 of the DOJ and there was clear and convincing proof that the killing was
committed with treachery and other qualifying circumstances not absorbed in treachery; and contended
that the accused's invocation of the right to a speedy trial was inconsistent with their filing of various
dilatory motions during the preliminary investigation. The YABUTs filed a Rejoinder 22 to this Opposition.

On 26 March 1996, Judge Roura deferred resolution of the Motion to Issue a Hold Departure Order until
"such time that all the accused who are out on bail are arraigned," but denied the Motion to Defer
Proceedings as he found no compelling reason therefor, considering that although the appeal was filed on
23 February 1996, "the private prosecution has not shown any indication that [the] appeal was given due
course by the Secretary of Justice." Judge Roura also set the arraignment of the accused on 12 April 1996.
23

It would appear that the private prosecution moved to reconsider the order denying the Motion to Defer
Proceedings since, on 12 April 1996, Judge Roura issued an Order 24 giving the private prosecutor "ten (10)
days from today within which to file a petition for certiorari questioning the order of the Court denying his
motion for reconsideration of the order of March 26, 1996." Arraignment was then reset to 3 May 1996.

On 19 April 1996, petitioners filed a motion to inhibit Judge Roura 25 from hearing Criminal Case No. 96-
1667(M) on the ground that he: (a) hastily set the case for arraignment while the former's appeal in the DOJ
was still pending evaluation; and (b) prejudged the matter, having remarked in open court that there was
"nothing in the records of the case that would qualify the case into Murder." At the same time, petitioners
filed a petition for prohibition 26 with the Court of Appeals docketed therein as CA-G.R. SP No. 40393, to
enjoin Judge Roura from proceeding with the arraignment in Criminal Case No. 96-1667(M).

On 24 April 1996, Public Prosecutor Olimpio R. Datu filed a Manifestation and Comment 27 with the trial
court wherein he opposed the motion to inhibit Judge Roura; manifested that "there is nothing in the record
. . . which shows that the subject killing is qualified into murder;" and announced that he "will no longer
allow the private prosecutor to participate or handle the prosecution of [the] case" in view of the latter's
petition to inhibit Judge Roura.

On 29 April 1996, Judge Roura voluntarily inhibited himself and ordered the case transferred to Branch 54
of the RTC, presided over by herein public respondent Judge Sesinando Villon. 28

On 30 April 1996, the Branch Clerk of Court of Branch 54 of the RTC received the record of Criminal Case
No. 96-1667(M). 29

On 30 April 1996, petitioners filed with the trial court a Manifestation 30 submitting, in connection with their
Motion to Defer Proceedings and Motion to Inhibit Judge Roura, documentary evidence to support their
contention that the offense committed was murder, not homicide. The documents which they claimed were
not earlier submitted by the public prosecution were the following:

a. Counter-Affidavit of SPO1 Gilberto D. Malabanan.

b. Sinumpaang Salaysay of Vladimir Yumul y Dimatulac.

c. Counter-Affidavit of Francisco I. Yambao.

d. Counter-Affidavit of SPO2 Fortunato Mallari.

e. Sinumpaang Salaysay of Aniano Magnaye.

f. Sinumpaang Salaysay of Leopoldo Soriano.

g. Transcript of Stenographic Notes of the Preliminary Investigation of Criminal

Case No. 95-360, containing the testimony of:

a. Peter Paul Dimatulac

b. Vladimir D. Yumul

c. SPO1 Gilberto Malabanan

d. PO3 Alfonso Canilao

h. Investigation Report-dated November 4, 1995.

i. Dying declaration of Virgilio Dimatulac.

j. Sketch

k. Unscaled Sketch

Likewise on 30 April 1996, the Court of Appeals promulgated, in CA-G.R. SP No. 40393, a Resolution 31
directing respondent therein to file his comment to the petition within ten days from notice and to show
cause within the same period "why no writ of preliminary injunction should be issued as prayed for in the
petition." However, the Court of Appeals "deferred action" on the prayer for a temporary restraining order
"until after the required comment [was] submitted."

On 3 May 1996, petitioners filed an Ex-Parte Manifestation 32 with the RTC, furnishing the trial court with a
copy of the aforementioned resolution of the Court of Appeals and drawing the attention of the trial court to
the rulings of this Court in "Valdez vs. Aquilisan, (133 SCRA 150), Galman vs. Sandiganbayan, and Eternal
Gardens Memorial Park Corp. vs. Court of Appeals . . . as well as the decision in Paul G. Roberts vs. The
Court of Appeals."

On 3 May 1996, Judge Villon issued an order resetting arraignment of the accused to 20 May 1996. 33 On the
latter date, the YABUTs each entered a plea of not guilty. 34

Alarmed by the conduct of arraignment, petitioners filed, on 27 May 1996, an Urgent Motion to Set Aside
Arraignment,35 citing the resolution of 30 April 1996 of the Court of Appeals in CA-G.R. SP No. 40393 which,
inter alia, deferred resolution on the application for a temporary restraining order "until after the required
comment is submitted by the respondent;" stressed that the filing of the information for the lesser offense
of homicide was "clearly unjust and contrary to law in view of the unquestionable attendance of
circumstances qualifying the killing to murder;" and asserted that a number of Supreme Court decisions
supported suspension of the proceedings in view of the pendency of their appeal before the DOJ.

On 31 May 1997, Judge Villon issued an Order 36 directing the accused to file their comment on the Urgent
Motion to Set Aside Arraignment within fifteen days from notice.

In a letter 37 addressed to the Provincial Prosecutor dated 7 June 1996, public respondent Secretary Teofisto
Guingona of the DOJ resolved the appeal in favor of petitioners. Secretary Guingona ruled that treachery
was present and directed the Provincial Prosecutor of San Fernando, Pampanga "to amend the information
filed against the accused from homicide to murder," and to include Fortunato Mallari as accused in the
amended information. The findings and conclusions of Secretary Guingona read as follows:

Contrary to your findings, we find that there is treachery that attended the killing of PO3
Dimatulac. Undisputedly, the victim was suddenly shot while he was descending the stairs. The
attack was unexpected as the victim was unarmed and on his way to make peace with Mayor
Yabut, he was unsuspecting so to speak. From the circumstances surrounding his killing, PO3
Dimatulac was indeed deprived of an opportunity to defend himself or to retaliate.

Corollarily, we are also convinced that such mode of attack was consciously and deliberately
adopted by the respondents to ensure the accomplishment of their criminal objective. The
admission of respondent Malabanan is replete with details on how the principal respondent,
Mayor Yabut, in conspiracy with the assailant and others, had consciously and deliberately
adopted means to ensure the execution of the crime. According to him, while they were on their
way to the victim's house, Mayor Yabut already instructed Danny, the assailant, that, "Dikitan
mo lang, alam no na king ano ang gagawin mo, bahala ka na" This explains why Danny
positioned himself near the stairs of the victim's house armed with a handgun, such positioning
was precisely adopted as a means to ensure the accomplishment of their evil design and Mayor
Yabut ordered nobody else but Danny to shoot the victim while descending the stairs as his
position was very strategic to ensure the killing of the victim.

As has been repeatedly held, to constitute treachery, two conditions must be present, to wit: (1)
employment of means of execution that gives the person [attacked] no opportunity to defend
himself or retaliate; and (2) the means of execution were deliberately or consciously adopted
(People vs. Talaver, 230 SCRA 281 [1994]). In the case at bar, these two (2) requisites are
present as established from the foregoing discussion. Hence, there being a qualifying
circumstance of treachery, the crime committed herein is murder, not homicide (People vs.
Gapasin, 231 SCRA 728 [1994]).

Anent the alleged participation of respondents Fortunato Mallari and Francisco Yambao, we find
sufficient evidence against Mallari as part of the conspiracy but not against Yambao. As can be
gleaned from the sworn-statement of Yambao, which appears to be credible, Mallari tried also to
persuade the victim to go with them, using as a reason that he (victim) was being invited by
General Ventura. He was also seen trying to fix the gun which was used in killing the victim.
These actuations are inconsistent with the claim that his presence at the crime scene was
merely passive.

On the other hand, we find credible the version and explanation of Yambao. Indeed, under the
obtaining circumstances, Yambao had no other option but to accede to the request of Mayor
Yabut to provide transportation to the assailant. There being an actual danger to his life then,
and having acted under the impulse of an uncontrollable fear, reason dictates that he should be
freed from criminal liability. 38

The YABUTs moved to reconsider the resolution, 39 citing Section 4 of "Administrative/Administration Order
No. 223 of the DOJ." 40

In an Ex-Parte Manifestation 41 dated 21 June 1996, petitioners called the trial court's attention to the
resolution of the Secretary of Justice, a copy of which was attached thereto. Later, in a Manifestation and
Motion 42 dated 1 July 1996, petitioners asked the trial court to grant their motion to set aside arraignment.
Attached thereto was a copy of the Manifestation and Motion 43 of the Solicitor General dated 18 June 1996
filed with the Court of Appeals in CA-G.R. SP No. 40393 wherein the Solicitor General joined cause with
petitioners and prayed that "in the better interest of justice, [the] Petition for Prohibition be GRANTED and a
writ of prohibition be ISSUED forthwith." In support of said prayer, the Solicitor General argued:

2. There is merit to the cause of petitioners. If the Secretary of Justice would find
their Appeal meritorious, the Provincial Prosecutor would be directed to upgrade
 the Information to Murder and extreme prejudice if not gross injustice would
thereby have been avoided.

3. Consequently, the undersigned counsel interpose no objection to the issuance of

a writ of prohibition enjoining respondent Judge from holding further proceedings
in Criminal Case No. 96-1667-M, particularly in holding the arraignment of the
accused, pending resolution of the Appeals with the Secretary of Justice.

The YABUTs opposed 44 petitioner's Manifestation and Motion dated 1 July 1996 because they had
already been arraigned and, therefore, would be placed in double jeopardy; and that the public
prosecutor — not the private prosecutor — had control of the prosecution of the case.

In his letter 45 dated 1 July 1996 addressed to the Provincial Prosecutor of Pampanga, the Secretary of
Justice set aside his order to amend the information from homicide to murder considering that the appeal
was rendered moot and academic by the arraignment of the accused for homicide and their having entered
their pleas of not guilty. The Secretary stated:

Considering that Santiago Yabut, Servillano Yabut and Martin Yabut had already been arraigned
on May 20, 1996 and had pleaded not guilty to the charge of homicide, as shown by a copy of
the court order dated May 20, 1996, the petition for review insofar as the respondents-Yabut are
concerned has been rendered moot and academic.

However, the Secretary reiterated that Fortunato Mallari should be included in the information for
homicide.

On 30 July 1996, Public Prosecutor Jaime Bustos filed a Motion for Leave to Amend Information and to
Admit Amended Information.46 The Amended Information 47 merely impleaded Fortunato Mallari as one of
the accused.

In his Order 48 of 1 August 1996, Judge Villon denied petitioners' motion to set aside arraignment, citing
Section 4, DOJ Department Order No. 223, and the letter of the Secretary of Justice of 1 July 1996.
Petitioners forthwith moved for reconsideration 49 of the order, arguing that the Motion to Defer the
Proceedings filed by petitioners was meritorious and did not violate the accused's right to speedy trial; and
that the DOJ had ruled that the proper offense to be charged was murder and did not reverse such finding.
Petitioners also cited the Solicitor General's stand 50 in CA-G.R. SP No. 40393 that holding accused's
arraignment in abeyance was proper under the circumstances. Finally, petitioners contended that in
proceeding with the arraignment despite knowledge of a petition for prohibition pending before the Court of
Appeals, the trial court violated Section 3(d), Rule 71 of the Rules of Court on indirect contempt. The
YABUTs opposed the motion on the ground that it raised no argument which had not yet been resolved. 51

On 3 September 1996, petitioners filed a Motion to Defer Arraignment of Accused Fortunato Mallari, 52 which
the trial court granted in view of petitioners' motion for reconsideration of the court's order denying
petitioners' motion to set aside private respondents' arraignment. 53 As expected, Mallari moved to
reconsider the trial court's order and clamored for consistency in the trial court's rulings. 54

In an order 55 dated 15 October 1996, Judge Villon denied reconsideration of the order denying petitioners'
motion to set aside arraignment, citing the YABUTs' right to a speedy trial and explaining that the
prosecution of an offense should be under the control of the public prosecutor, whereas petitioners did not
obtain the conformity of the prosecutor before they filed various motions to defer proceedings. Considering
said order, Judge Villon deemed accused Mallari's motion for reconsideration moot and academic. 56

On 16 October 1996, the Court of Appeals promulgated its decision 57 in CA-G.R. SP No. 40393 dismissing
the petition therein for having become moot and academic in view of Judge Roura's voluntary inhibition, the
arraignment of the YABUTs and the dismissal, by the Secretary of Justice, of petitioners' appeal as it had
been mooted by said arraignment.

Judge Villon was later detailed to Branch 24 of the Regional Trial Court of Manila, and Judge Roura was
ordered by the Supreme Court to preside over cases pending in Branch 54 of the Regional Trial Court of
Macabebe, Pampanga, which was previously presided over by Judge Villon. 58 Judge Roura informed the
Office of the Court Administrator and this Court that he had already inhibited himself from hearing Criminal
Case No. 96-1667(M). 59

On 28 December 1996, petitioners filed the instant Petition for Certiorari/Prohibition and Mandamus. They
urge this Court to reverse the order of respondent Judge denying their Motion to Set Aside Arraignment;
set aside arraignment of private respondents; order that no further action be taken by any court in Criminal
Case No. 96-1667(M) until this petition is resolved; and order respondents Secretary of Justice and the
prosecutors concerned to amend the information from homicide to murder.
Petitioners insist that the killing of PO3 Virgilio Dimatulac was attended by treachery since private
respondents tricked the victim into coming out of his house and then shot him while he was going down the
stairs. There was, petitioners claim, "an orchestrated effort on the part of [private respondents] to
manipulate the rules on administrative appeals with the end in view of evading prosecution for the [non-
bailable] offense of murder," as shown by the following events or circumstances:

(1) Assistant Provincial Prosecutor Alfonso-Flores downgraded the nature of the

crime committed to homicide, a bailable offense, on strength of a motion for
reinvestigation filed by the YABUTs who had not yet been arrested.

(2) Respondent Mayor and his companions returned to Minalin after the killing and
went into hiding for four (4) months until the offense charged was downgraded.

(3) The information for homicide was nevertheless filed despite notice to the Office
of the Provincial Prosecutor of the appeal filed with the Secretary of Justice and
request to defer any action on the case.

(4) The Office of the Public Prosecutor of Pampanga disallowed the private
prosecutor from further participating in the case.

(5) Judge Roura denied the motion to defer proceedings and declared in open court
that there was no prima facie case for murder, notwithstanding the pendency of
petitioners' appeal with respondent Secretary of Justice.

(6) Even before receipt by petitioners of Judge Roura's order inhibiting himself and
the order regarding the transfer of the case to Branch 54, public respondent Judge
Villon set the case for arraignment and, without notice to petitioners, forthwith
arraigned the accused on the information for homicide on 20 May 1996, despite the
pendency of the petition for prohibition before the Court of Appeals and of the
appeal before the DOJ.

(7) The Pampanga Provincial Prosecutor's Office did not object to the arraignment
nor take any action to prevent further proceedings on the case despite knowledge
of the pendency of the appeal.

(8) The Provincial Prosecutor did not comply with the resolution of 7 June 1996 of
the Secretary of Justice directing the amendment of the information to charge the
crime of murder.

Petitioners argue that in light of Roberts, Jr., v. Court of Appeals, 60 respondent Judge acted in excess of his
jurisdiction in proceeding with private respondents' arraignment for homicide and denying petitioners'
motion to set aside arraignment. Moreover, although respondent Judge Villon was not the respondent in
CA-G.R. SP No. 40393; he should have deferred the proceedings just the same as the very issue in said
case was whether or not the RTC could proceed with the arraignment despite the pending review of the
case by respondent Secretary of Justice. Further, Judge Villon unjustly invoked private respondents' right
to a speedy trial, after a lapse of barely three (3) months from the filing of the information on 23 February
1996; overlooked that private respondents were estopped from invoking said right as they went into hiding
after the killing, only to resurface when the charge was reduced to homicide; and failed to detect the
Provincial Prosecutor's bias in favor of private respondents. Judge Villon should have been more
circumspect as he knew that by proceeding with the arraignment, the appeal with the DOJ would be
rendered technically nugatory.

Finally, petitioners submit that the DOJ rule prohibiting appeals from resolutions of prosecutors to the
Secretary of Justice once the accused had already been arraigned applies only to instances where the
appellants are the accused, since by submitting to arraignment, they voluntarily abandon their appeal.

In their comment, private respondents contend that no sufficient legal justification exists to set aside
private respondents' arraignment, it having already been reset twice from 12 April 1996 to 3 may 1996, due
to petitioners' pending appeals with the DOJ; and from 3 May 1996 to 20 May 1996, due to the transfer of
this case to Branch 54. Moreover, as of the latter date, the DOJ had not yet resolved petitioners' appeal and
the DOJ did not request that arraignment be held in abeyance, despite the fact that petitioners' appeal had
been filed as early as 23 February 1996, at least 86 days prior to private respondents' arraignment. They
point out that petitioners did not move to reconsider the RTC's 26 March 1996 denial of the Motion to Defer,
opting instead for Judge Roura's recusal and recourse to the Court of Appeals, and as no restraining order
was issued by the Court of Appeals, it was but proper for respondent Judge to proceed with the
arraignment of private respondent, to which the public and private prosecutors did not object.
Private respondents further argue that the decision of respondent Secretary, involving as it did the exercise
of discretionary powers, is not subject to judicial review. Under the principle of separation of powers,
petitioners' recourse should have been to the President. While as regards petitioners' plea that the
Secretary be compelled to amend the information from homicide to murder, private respondents submit that
mandamus does not lie, as the determination as to what offense was committed is a prerogative of the DOJ,
subject only to the control of the President.

As regards DOJ Department Order No. 223, private respondents theorize that appeal by complainants is
allowed only if the complaint is dismissed by the prosecutor and not when there is a finding of probable
cause, in which case, only the accused can appeal. Hence, petitioners' appeal was improper.

Finally, private respondents stress the fact that petitioners never appealed the withdrawal by the public
prosecutor of the private prosecutor's authority to handle the case.

In its comment for the public respondents, the Office of the Solicitor General (OSG) prays that the petition
be denied because: (a) in accordance with Section 4 of DOJ Order No. 223, upon arraignment of the
accused, the appeal to the Secretary of Justice shall be dismissed motu proprio; (b) the filing of the
information for homicide was in compliance with the directive under Section 4(2), D.O. No. 223, i.e., an
appeal or motion for reinvestigation from a resolution finding probable cause shall not hold the filing of the
information in court; (c) the trial court even accommodated petitioners by initially deferring arraignment
pending resolution by the Court of Appeals of the petition for prohibition, and since said Court did not issue
any restraining order, arraignment was properly had; and (d) reliance on Roberts is misplaced, as there,
accused Roberts and others had not been arraigned and respondent Judge had ordered the indefinite
postponement of the arraignment pending resolution of their petitions before the Court of Appeals and the
Supreme Court.

We now consider the issues enumerated at the outset of this ponencia.

Plainly, the proceedings below were replete with procedural irregularities which lead us to conclude that
something had gone awry in the Office of the Provincial Prosecutor of Pampanga resulting in manifest
advantage to the accused, more particularly the YABUTs, and grave prejudice to the State and to private
complainants, herein petitioners.

First, warrants for the arrest of the YABUTs were issued by the MCTC, with no bail recommended for their
temporary liberty. However, for one reason or another undisclosed in the record, the YABUTs were not
arrested; neither did they surrender. Hence, they were never brought into the custody of the law. Yet, Asst.
Provincial Fiscal Alfonso Reyes, either motu proprio or upon motion of the YABUTs, conducted a
reinvestigation. Since said accused were at large, Alfonso-Reyes should not have done so. While it may be
true that under the second paragraph of Section 5, Rule 112 of the Rules of Court, the provincial prosecutor
may disagree with the findings of the judge who conducted the preliminary investigation, as here, this
difference of opinion must be on the basis of the review of the record and evidence transmitted by the
judge. Were that all she did, as she had no other option under the circumstance, she was without any other
choice but to sustain the MCTC since the YABUTs and all other accused, except Francisco Yambao, waived
the filing of their counter-affidavits. Then, further stretching her magnanimity in favor of the accused,
Alfonso-Reyes allowed the YABUTs to submit their counter-affidavits without first demanding that they
surrender because of the standing warrants of arrest against them. In short, Alfonso-Reyes allowed the
YABUTs to make a mockery of the law in order that they gain their provisional liberty pending trial and be
charged with the lesser offense of homicide.

Second, Alfonso-Reyes recommended a bond of only P20,000.00 for the YABUTs and co-accused "Danny,"
despite the fact that they were charged with homicide and they were, at the time, fugitives from justice for
having avoided service of the warrant of arrest issued by the MCTC and having failed to voluntarily
surrender.

Third, Alfonso-Reyes was fully aware of the private prosecution's appeal to the DOJ from her resolution.
She could not have been ignorant of the fact that the appeal vigorously assailed her finding that there was
no qualifying circumstance attending the killing, and that the private prosecution had convincing
arguments to support the appeal. The subsequent resolution of the Secretary of Justice confirmed the
correctness of the private prosecution's stand and exposed the blatant errors of Alfonso-Reyes.

Fourth, despite the pendency of the appeal, Alfonso-Reyes filed the Information for homicide on 28
February 1996. It is interesting to note that while the information was dated 29 January 1996, it was
approved by the Provincial Prosecutor only on 27 February 1996. This simply means that the Office of the
Prosecutor was not, initially, in a hurry to file the Information. No undue prejudice could have been caused
to the YABUTs if it were filed even later for the YABUTs were still at large; in fact, they filed their bonds of
P20,000.00 each only after the filing of the Information. If Alfonso-Flores was extremely generous to the
YABUTs, no compelling reason existed why she could not afford the offended parties the same courtesy by
at least waiting for instructions from the Secretary of Justice in view of the appeal, if she were unwilling to
voluntarily ask the latter for instructions. Clearly, under the circumstances, the latter course of action would
have been the most prudent thing to do.

Fifth, as if to show further bias in favor of the YABUTs, the Office of the Provincial Prosecutor of Pampanga
did not even bother to motu proprio, inform the trial court that the private prosecution had appealed from
the resolution of Alfonso-Flores and had sought, with all the vigour it could muster, the filing of an
information for murder, as found by the MCTC and established by the evidence before it.

Unsatisfied with what had been done so far to accommodate the YABUTs, the Office of the Provincial
Prosecutor did not even have the decency to agree to defer arraignment despite its continuing knowledge
of the pendency of the appeal. This amounted to defiance of the DOJ's power of control and supervision
over prosecutors, a matter which we shall later elaborate on. Moreover, in an unprecedented move, the trial
prosecutor, Olimpio Datu, had the temerity, if not arrogance, to announce that "he will no longer allow the
private prosecutor to participate or handle the prosecution of [the] case" simply because the private
prosecution had asked for the inhibition of Judge Roura. Said prosecutor forgot that since the offended
parties here had not waived the civil action nor expressly reserved their right to institute it separately from
the criminal action, then they had the right to intervene in the criminal case pursuant to Section 16 of Rule
1l0 of the Rules of Court.

It is undebatable that petitioners had the right to appeal to the DOJ from the resolution of Alfonso-Flores.
The last paragraph of Section 4 of Rule 112 of the Rules of Court provides:

If upon petition by a proper party, the Secretary of Justice reverses the resolution of the
provincial or city fiscal or chief state prosecutor, he shall direct the fiscal concerned to file the
corresponding information without conducting another preliminary investigation or to dismiss
or move for the dismissal of the complaint or information.

It is clear from the above, that the proper party referred to therein could be either the offended party
or the accused.

More importantly, an appeal to the DOJ is an invocation of the Secretary's power of control over
prosecutors. Thus, in Ledesma v. Court of Appeals, 16 we emphatically held:

Decisions or resolutions of prosecutors are subject to appeal to the secretary of justice who,
under the Revised Administrative Code, 62 exercises the power of direct control and supervision
over said prosecutors; and who, may thus affirm, nullify, reverse or modify their rulings.

Sec. 39, Chapter 8, Book IV in relation to Section[s] 5, 8, and 9, Chapter 2, Title III of the Code
gives the secretary of justice supervision and control over the Office of the Chief Prosecutor
and the Provincial and City Prosecution Offices. The scope of his power of supervision and
control is delineated in Section 38, paragraph 1, Chapter 7, Book IV of the Code:

(1) Supervision and Control. — Supervision and control shall include authority to
act directly whenever a specific function is entrusted by law or regulation to a
subordinate; direct the performance of duty; restrain the commission of acts;
review, approve, reverse or modify acts and decisions of subordinate officials or
units; . . . .

Supplementing the aforequoted provisions are Section 3 of R.A. 3783 and Section 37 of Act
4007, which read:

Sec. 3. . . .

The Chief State Prosecutor, the Assistant Chief State Prosecutors, the Senior State
Prosecutors, and the State Prosecutors shall . . . perform such other duties as may
be assigned to them by the Secretary of Justice in the interest of public service.

x x x           x x x          x x x

Sec. 37. The provisions of the existing law to the contrary notwithstanding,
whenever a specific power, authority, duty, function, or activity is entrusted to a
chief of bureau, office, division or service, the same shall be understood as also
conferred upon the proper Department Head who shall have authority to act directly
in pursuance thereof, or to review, modify, or revoke any decision or action of said
chief of bureau, office, division or service.
 "Supervision" and "control" of a department head over his subordinates have been defined in
administrative law as follows:

In administrative law, supervision means overseeing or the power or authority of an

officer to see that subordinate officers perform their duties. If the latter fail or
neglect to fulfill them, the former may take such action or step as prescribed by law
to make them perform such duties. Control, on the other hand, means the power of
an officer to alter or modify or nullify or set aside what a subordinate officer had
done in the performance of his duties and to substitute the judgment of the former
for that of the latter.

Review as an act of supervision and control by the justice secretary over the fiscals and
prosecutors finds basis in the doctrine of exhaustion of administrative remedies which holds
that mistakes, abuses or negligence committed in the initial steps of an administrative activity
or by an administrative agency should be corrected by higher administrative authorities, and
not directly by courts. As a rule, only after administrative remedies are exhausted may judicial
recourse be allowed.

DOJ Order No. 223 of 30 June 1993 recognizes the right of both the offended parties and the accused to
appeal from resolutions in preliminary investigations or reinvestigations, as provided for in Section 1 and
Section 4, respectively. Section 1 thereof provides, thus:

Sec. 1. What May Be Appealed. — Only resolutions of the Chief State Prosecutor/Regional State
Prosecutor/Prosecutor or City Prosecutor dismissing a criminal complaint may be the subject
of an appeal to the Secretary of Justice except as otherwise provided in Section 4 hereof.

While the section speaks of resolutions dismissing a criminal complaint, petitioners herein were not barred
from appealing from the resolution holding that only homicide was committed, considering that their
complaint was for murder. By holding that only homicide was committed, the Provincial Prosecutor's Office
of Pampanga effectively "dismissed" the complaint for murder. Accordingly, petitioners could file an appeal
under said Section 1. To rule otherwise would be to forever bar redress of a valid grievance, especially
where the investigating prosecutor, as in this case, demonstrated what unquestionably appeared to be
unmitigated bias in favor of the accused. Section 1 is not to be literally applied in the sense that appeals by
the offended parties are allowed only in cases of dismissal of the complaint, otherwise the last paragraph of
Section 4, Rule 112, Rules of Court would be meaningless.

We cannot accept the view of the Office of the Solicitor General and private respondents that Section 1 of
DOJ Department Order No. 223 is the controlling rule; hence, pursuant to the second paragraph thereof the
appeal of petitioners did not hold the filing of the information. As stated above, Section 4 applies even to
appeals by the respondents or accused. The provision reads:

Sec. 4. Non-appealable cases. Exceptions. — No appeal may be taken from a resolution of the
Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor finding
probable cause except upon a showing of manifest error or grave abuse of discretion.
Notwithstanding the showing of minifest error or grave abuse of discretion, no appeal shall be
entertained where the appellant had already been arraigned. If the appellant is arraigned during
the pendency of the appeal, said appeal shall be dismissed motu proprio by the Secretary of
Justice.

An appeal/motion for reinvestigation from a resolution finding probable cause, however, shall
not hold the filing of the information in court. (emphasis supplied)

The underlined portion indisputably shows that the section refers to appeals by respondents or accused.
So we held in Marcelo v. Court of
Appeals, 63 that nothing in the ruling in Crespo v. Mogul, 64 reiterated in Roberts v. Court of Appeals, 65
forecloses the power of authority of the Secretary of Justice to review resolutions of his subordinates in
criminal cases despite an information already having been filed in court. The Secretary of Justice is only
enjoined to refrain, as far as practicable, from entertaining a petition for review or appeal from the action of
the prosecutor once a complaint or information is filed in court. In any case, the grant of a motion to
dismiss, which the prosecution may file after the Secretary of Justice reverses an appealed resolution, is
subject to the discretion of the court. In Roberts we went further by saying that Crespo could not have
foreclosed said power or authority of the Secretary of Justice "without doing violence to, or repealing, the
last paragraph of Section 4, Rule 112 of the Rules of Court" which is quoted above.

Indubitably then, there was on the part of the public prosecution, indecent haste in the filing of the
information for homicide, depriving the State and the offended parties of due process.
As to the second issue, we likewise hold that Judge Roura acted with grave abuse of discretion when, in his
order of 26 March l996, 66 he deferred resolution on the motion for a hold departure order until "such time
that all the accused who are out on bail are arraigned" and denied the motion to defer proceedings for the
reason that the "private prosecution has not shown any indication that [the] appeal was given due course
by the Secretary of Justice." Neither rhyme nor reason or even logic, supports the ground for the deferment
of the first motion. Precisely, immediate action thereon was called for as the accused were out on bail and,
perforce, had all the opportunity to leave the country if they wanted to. To hold that arraignment is a
prerequisite to the issuance of a hold departure order could obviously defeat the purpose of said order. As
to the second motion, Judge Roura was fully aware of the pendency of petitioner's appeal with the DOJ,
which was filed as early as 23 February 1996. In fact, he must have taken that into consideration when he
set arraignment of the accused only on 12 April 1996, and on that date, after denying petitioners' motion to
reconsider the denial of the motion to defer proceedings, he further reset arraignment to 3 May 1996 and
gave petitioners ten (10) days within which to file a petition for certiorari to question his denial of the motion
to defer and of the order denying the reconsideration. In any event, the better part of wisdom suggested
that, at the very least, he should have asked petitioners as regards the status of the appeal or warned them
that if the DOJ would not decide the appeal within a certain period, then arraignment would proceed.

Petitioners did in fact file the petition with the Court of Appeals on 19 April 1996 and, at the same time,
moved to inhibit Judge Roura. These twin moves prompted Judge Roura to "voluntarily" inhibit himself
from the case on 29 April 1996 67 and to transfer the case to the branch presided by public respondent
Judge Villon. The latter received the records of the case on 30 April 1996. From that time on, however, the
offended parties did not receive any better deal. Acting with deliberate dispatch, Judge Villon issued an
order on 3 May 1996 setting arraignment of the accused on 20 May 1996. If Judge Villon only perused the
record of the case with due diligence, as should be done by anyone who has just taken over a new case, he
could not have helped but notice: (a) the motion to defer further proceedings; (2) the order of Judge Roura
giving petitioners ten days within which to file a petition with the Court of Appeals; (3) the fact of the filling
of such petition in CA-G.R. SP No. 40393; (4) the resolution of the Court of Appeals directing respondents to
comment on the petition and show cause why the application for a writ of preliminary injunction should not
be granted and deferring resolution of the application for a temporary restraining order until after the
required comment was filed, which indicated a prima facie showing of merit; (5) the motion to inhibit Judge
Roura precisely because of his prejudgment that the crime committed was merely homicide; (6) Judge
Roura's subsequent inhibition; (7) various pieces of documentary evidence submitted by petitioners on 30
April 1996 supporting a charge of murder, not homicide; and (8) most importantly , the pending appeal with
the DOJ.

All the foregoing demanded from any impartial mind, especially that of Judge Villon, a cautious attitude as
these were unmistakable indicia of the probability of a miscarriage of justice should arraignment be
precipitately held. However, Judge Villon cursorily ignored all this. While it may be true that he was not
bound to await the DOJ's resolution of the appeal, as he had, procedurally speaking, complete control over
the case and any disposition thereof rested on his sound discretion, 68 his judicial instinct should have led
him to peruse the documents submitted on 30 April 1996 and to initially determine, for his own
enlightenment with serving the ends of justice as the ultimate goal, if indeed murder was the offense
committed; or, he could have directed the private prosecutor to secure a resolution on the appeal within a
specified time. Given the totality of circumstances, Judge Villon should have heeded our statement in
Marcelo 69 that prudence, if not wisdom, or at least, respect for the authority of the prosecution agency,
dictated that he should have waited for the resolution of the appeal then pending before the DOJ. All told,
Judge Villon should not have merely acquiesced to the findings of the public prosecutor.

We do not then hesitate to rule that Judge Villon committed grave abuse of discretion in rushing the
arraignment of the YABUTs on the assailed information for homicide. Again, the State and the offended
parties were deprived of due process.

Up to the level then of Judge Villon, two pillars of the criminal justice system failed in this case to function
in a manner consistent with the principle of accountability inherent in the public trust character of a public
office. Judges Roura and Villon and prosecutors Alfonso-Flores and Datu need be reminded that it is in the
public interest that every crime should be punished 70 and judges and prosecutors play a crucial role in this
regard for theirs is the delicate duty to see justice done, i.e., not to allow the guilty to escape nor the
innocent to
suffer. 71

Prosecutors must never forget that, in the language of Suarez v. Platon, 72 they are the representatives not
of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as
compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not
that it shall win every case but that justice be done. As such, they are in a peculiar and every definite sense
the servants of the law, whose two-fold aim is that guilt shall not escape or innocence suffer.
Prosecutors are charged with the defense of the community aggrieved by a crime, and are expected to
prosecute the public action with such zeal and vigor as if they were the ones personally aggrieved, but at all
times cautious that they refrain from improper methods designed to secure a wrongful conviction. 73 With
them lies the duty to lay before the court the pertinent facts at the judge's disposal with strict attention to
punctilios, thereby clarifying contradictions and sealing all gaps in the evidence, with a view to erasing all
doubt from the court's mind as to the accused's innocence or guilt.

The judge, on the other hand, "should always be imbued with a high sense of duty and responsibility in the
discharge of his obligation to promptly and properly administer justice." 74 He must view himself as a priest,
for the administration of justice is akin to a religious crusade. Thus, exerting the same devotion as a priest
"in the performance of the most sacred ceremonies of religious liturgy," the judge must render service with
impartiality commensurate with the public trust and confidence reposed in him. 75 Although the
determination of a criminal case before a judge lies within his exclusive jurisdiction and competence, 76 his
discretion is not unfettered, but rather must be exercised within reasonable confines. 77 The judge's action
must not impair the substantial rights of the accused, nor the right of the State and offended party to due
process of law. 78

Indeed, for justice to prevail, the scales must balance; justice is not to be dispensed for the accused alone.
The interests of society and the offended parties which have been wronged must be equally considered.
Verily, a verdict of conviction is not necessarily a denial of justice; and an acquittal is not necessarily a
triumph of justice, for, to the society offended and the party wronged, it could also mean injustice. 79 Justice
then must be rendered even-handedly to both the accused, on one hand, and the State and offended party,
on the other.

In this case, the abuse of discretion on the part of the public prosecution and Judges Roura and Villon was
gross, grave and palpable, denying, the State and the offended parties their day in court, or in a
constitutional sense, due process. As to said judges, such amounted to lack or excess of jurisdiction, or
that their court was ousted of the jurisdiction in respect thereto, thereby nullifying as having been done
without jurisdiction, the denial of the motion to defer further hearings, the denial of the motion to reconsider
such denial, the arraignment of the YABUTs and their plea of not guilty.

These lapses by both the judges and prosecutors concerned cannot be taken lightly. We must remedy the
situation before the onset of any irreversible effects. We thus have no other recourse, for as Chief Justice
Claudio Teehankee pronounced in Galman v. Sandiganbayan: 80

The Supreme Court cannot permit such a sham trial and verdict and travesty of justice to stand
unrectified. The courts of the land under its aegis are courts of law and justice and equity. They
would have no reason to exist if they were allowed to be used as mere tools of injustice,
deception and duplicity to subvert and suppress the truth, instead of repositories of judicial
power whose judges are sworn and committed to render impartial justice to all alike who seek
the enforcement or protection of a right or the prevention of redress of a wrong, without fear or
favor and removed from the pressures of politics and prejudice.

We remind all members of the pillars of the criminal justice system that theirs is not a mere ministerial
task to process each accused in and out of prison, but a noble duty to preserve our democratic
society under a rule of law.

Anent the third issue, it was certainly grave error for the DOJ to reconsider its 7 June 1996 resolution,
holding that murder was committed and directing the Provincial Prosecutor to accordingly amend the
information, solely on the basis of the information that the YABUTs had already been arraigned. In so doing,
the DOJ relinquished its power of control and supervision over the Provincial Prosecutor and the Assistant
Provincial Prosecutors of Pampanga; and meekly surrendered to the latter's inappropriate conductor even
hostile attitude, which amounted to neglect of duty or conduct prejudicial to the best interest of the service,
as well as to the undue haste of Judge Roura and Villon in respect of the arraignment of the YABUTs. The
sins of omission or commission of said prosecutors and judges resulted, in light of the finding of the DOJ
that the crime committed was murder, in unwarranted benefit to the YABUTs and gross prejudice to the
State and the offended parties. The DOJ should have courageously exercised its power of control by taking
bolder steps to rectify the shocking "mistakes" so far committed and, in the final analysis, to prevent
further injustice and fully serve the ends of justice. The DOJ could have, even if belatedly, joined cause with
petitioners to set aside arraignment. Further, in the exercise of its disciplinary powers over its personnel,
the DOJ could have directed the public prosecutors concerned to show cause why no disciplinary action
should be taken against them for neglect of duty or conduct prejudicial to the best interest of the service in
not, inter alia, even asking the trial court to defer arraignment in view of the pendency of the appeal,
informing the DOJ, from time to time, of the status of the case, and, insofar as prosecutor Datu was
concerned, in disallowing the private prosecutor from further participating in the case.
Finally, the DOJ should have further inquired into the vicissitudes of the case below to determine the
regularity of arraignment, considering that the appeal was received by the DOJ as early as 23 February
1996.

We then rule that the equally hasty motu proprio "reconsideration" of the 7 June 1996 resolution of the DOJ
was attended with grave abuse of discretion.

It is settled that when the State is deprived of due process in a criminal case by reason of grave abuse of
discretion on the part of the trial court, the acquittal of the accused 81 or the dismissal of the case 82 is void,
hence double jeopardy cannot be invoked by the accused. If this is so in those cases, so must it be where the
arraignment and plea of not guilty are void, as in this case as above discussed.

WHEREFORE, the petition is GRANTED. The orders of Judge Reynaldo Roura of 26 March 1996 denying the
Motion to Defer Proceeding and of 12 April 1996 denying the motion to reconsider the denial of said Motion
to Defer Proceedings, and the orders of respondent Judge Sesinando Villon of 3 May 1996 resetting the
arraignment to 20 May 1998 and of 25 October 1996 denying the Motion to Set Aside Arraignment in
Criminal Case No. 96-1667(M) are declared VOID and SET ASIDE. The arraignment of private respondents
Mayor Santiago Yabut, Servillano Yabut and Martin Yabut and their separate pleas of not guilty are likewise
declared VOID and SET ASIDE. Furthermore, the order of public respondent Secretary of Justice of 1 July
1996 is SET ASIDE and his order of 7 June 1996 REINSTATED.

The Office of the Provincial Prosecutor of Pampanga is DIRECTED to comply with the order (letter) of the
Secretary of Justice of 7 June 1996 by forthwith filing with the trial court the amended information for
murder. Thereafter the trial court shall proceed in said case with all reasonable dispatch.

No pronouncement as to costs.

SO ORDERED.

Bellosillo, Vitug, Panganiban and Quisumbing, JJ., concur.

Footnotes

1 Rollo, 90.

2 Id., 51-52.

3 Original Record (OR), 9.

4 Id., 19-21.

5 OR, 20-21.

6 Id., 5.

7 OR, 6.

8 Id., 7.

9 Id., 9-18.

10 OR, 36-50.

11 OR, 4.

12 Id., 1.

13 Id., 33.

14 OR, 52-53.

15 Id., 54-56.

16 Id., 59.

17 Id., 62.

18 Id., 63-71.
19 151 SCRA 462 [1987].

20 176 SCRA 287 [1989].

21 OR, 78-83.

22 Id., 92-97.

23 Id., 100.

24 Id., 118.

25 OR, 139-141.

26 Id., 129-136.

27 Id., 142-143.

28 Id., 146-149.

29 Id., 210.

30 Id., 150-151.

31 OR, 224.

32 Id., 213-215.

33 Id., 218.

34 Id., 227-228.

35 OR, 231-237.

36 Id., 244.

37 Id., 247-252.

38 OR, 250-251.

39 Id., 253-255.

40 The YABUTs must have had in mind DOJ Department Order (D.O.) No. 223 dated 30 June
1993 and entitled "1993 Revised Rules on Appeals from Resolutions in Preliminary
Investigations/Reinvestigations." Sec. 4 thereof states:

[N]o appeal shall be entertained where the appellant had already been arraigned. If
the appellant is arraigned during the pendency of the appeal, said appeal shall be
dismissed motu proprio by the Secretary of Justice.

41 OR, 256-257.

42 Id., 260-265.

43 Id., 266-269.

44 OR, 270-273.

45 Id., 274-275.

46 OR, 300-301.

47 Id., 302.

48 Id., 306-307.

49 Id., 310-320.

50 Supra note 43.

51 OR, 346-362.

52 Id., 335-337.

53 Id., 339.

54 Id., 368-373.

55 OR, 376-379.

56 Id., 380.

57 Id., 382-385.

58 Id., 386.

59 Id., 390.

60 254 SCRA 307 [1996].

61 278 SCRA 656, 676-678 [1997].

62 The 1987 Revised Administrative Code, Executive Order No. 292.

63 235 SCRA 39, 48-49 [1994].

64 Supra note 19.

65 Supra note 60.

66 OR, 100.

67 OR, 146-149.

68 Crespo v. Mogul, supra note 19 at 471.

69 Supra note 63.

70 United States v. Montaner, 8 Phil. 620, 629 [1907].

71 United States v. Mamintud, 6 Phil. 374, 376 [1906]; Suarez v. Platon, 69 Phil. 556, 565 [1940];
People v. Esquivel, 82 Phil. 453, 459 [1948]; Crespo v. Mogul, supra note 19; Allado v. Diokno,
232 SCRA 192, 206, 210 [1994].

72 Supra note 71.

73 Supra note 71.

74 Agcaoili v. Ramos, 229 SCRA 705, 711 [1994].

75 People v. Bedia, 83 Phil. 909, 916 [1949].

76 Crespo v. Mogul, supra note 19 at 471.

77 See, e.g., Herras Teehankee v. Director of Prisons, 76 Phil. 756, 773 [1946].

78 Crespo v. Mogul, supra note 19 at 170, citing People v. Zabala, 58 OG 5028 and Galman v.
Sandiganbayan, 144 SCRA 43, 101 [1986].

79 People v. Court of Appeals, 101 SCRA 450, 467 [1980].

80 Supra note 78 at 86.

81 People v. Balicasan, 17 SCRA 1119, 1123 [1966]; People v. Court of Appeals, supra note 79;
Galman v. Sandiganbayan, supra note 78 at 89.

82 People v. Cabero, 61 Phil. 121, 127 [1934]; People v. Gomez, 20 SCRA 293, 298 [1967]; People
v. Catolico, 38 SCRA 389, 404 [1971]; Serino v. Zosa, 40 SCRA 433, 438-440 [1971]; People v.
Navarro, 63 SCRA 264, 273 [1975]; Silvestre v. Military Commission No. 21, 82 SCRA 10, 18-19
[1978]; People v. Bocar, 138 SCRA 166, 170-171 [1985]; People v. Castañeda, 165 SCRA 327, 343
 [1988]; Portugal v. Reantaso, 167 SCRA 712, 720 [1988]; Aquino v. Sison, 179 SCRA 648, 651-652
[1989]; Gorion v. Regional Trial Court of Cebu, Br. 17, 213 SCRA 138, 148 [1992].

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