PRESIDENTIAL DECREE NO.

1866 June 29, 1983

CODIFYING THE LAWS ON ILLEGAL/UNLAWFUL POSSESSION,

MANUFACTURE, DEALING IN, ACQUISITION OR DISPOSITION, OF
FIREARMS, AMMUNITION OR EXPLOSIVES OR INSTRUMENTS USED
IN THE MANUFACTURE OF FIREARMS, AMMUNITION OR
EXPLOSIVES, AND IMPOSING STIFFER PENALTIES FOR CERTAIN
VIOLATIONS THEREOF AND FOR RELEVANT PURPOSES

I. FULL TEXT

WHEREAS, there has been an upsurge of crimes vitally affecting public

order and safety due to the proliferation of illegally possessed and
manufactured firearms, ammunition and explosives;

WHEREAS, this criminal acts have resulted in loss of human lives, damage
to property and destruction of valuable resources of the country;

WHEREAS, there are various laws and presidential decrees which penalized
illegal possession and manufacture of firearms, ammunition and explosives;

WHEREAS, there is need to consolidate, codify and integrate said laws and
presidential decrees to harmonize their provisions;

WHEREAS, there are some provisions in said laws and presidential decrees
which must be updated and revised in order to more effectively deter
violators of the law on firearms, ammunition and explosives;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the

Philippines, by virtue of the powers vested in me vested by the Constitution,
do hereby decree:

Sec. 1. Unlawful Manufacture, Sale, Acquisition, Disposition or

Possession of Firearms or Ammunition or Instruments Used or Intended to

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be Used in the Manufacture of Firearms of Ammunition. The penalty of
reclusion temporal in its maximum period to reclusion perpetua shall be
imposed upon any person who shall unlawfully manufacture, deal in,
acquire, dispose, or possess any firearm, part of firearm, ammunition or
machinery, tool or instrument used or intended to be used in the manufacture
of any firearm or ammunition.
If homicide or murder is committed with the use of an unlicensed firearm,
the penalty of death shall be imposed.
If the violation of reclusion temporal in its maximum period to reclusion
perpetua shall be imposed upon the owner, president, manager, director or
other responsible officer of any public or private firm, company, corporation
or entity, who shall willfully or knowingly allow any of the firearms owned
by such firm, company, corporation or entity to be used by any person or
persons found guilty of violating the provisions of the preceding paragraphs.
The penalty of prision mayor shall be imposed upon any person who shall
carry any licensed firearm outside his residence without legal authority
therefor.
Sec. 2. Presumption of Illegal Manufacture of Firearms or
Ammunition. The possession of any machinery, tool or instrument used
directly in the manufacture of firearms or ammunition, by any person whose
business or employment does not lawfully deal with the manufacture of
firearms or ammunition, shall be prima facie evidence that such article is
intended to be used in the unlawful/illegal manufacture of firearms or
ammunition.
Sec. 3. Unlawful Manufacture, Sales, Acquisition, Disposition or
Possession of Explosives. The penalty of reclusion temporal in its
maximum period to reclusion perpetua shall be imposed upon any person
who shall unlawfully manufacture, assemble, deal in, acquire, dispose or
possess hand grenade(s), rifle grenade(s) and other explosives, including but
not limited to "philbox bombs", "molotov cocktail bomb", "fire-bombs", or
other incendiary devices capable of producing destructive effect on
contiguous objects or causing injury or death to any person.
Any person who commits any of the crimes defined in the Revised Penal
Code or special laws with the use of the aforementioned explosives,
detonation agents or incendiary devices, which results in the death of any
person or persons shall be punished with the penalty of death.
If the violation of this Section is in furtherance of, or incident to, or in
connection with the crimes of rebellion, insurrection or subversion, the
penalty of death shall be imposed.

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The penalty of reclusion temporal in its maximum period to reclusion
perpetua shall be imposed upon the owner, president, manager, director or
other responsible officer of any public or private firm, company, corporation
or entity, who shall willfully or knowingly allow any of the explosives
owned by such firm, company, corporation or entity to be used by any
person or persons found guilty of violating the provisions of the preceding
paragraphs.
Sec. 4. Presumption of Unlawful Manufacture. The possession of any
machinery, tool or instrument directly used in the manufacture of explosives,
by any person whose business or employment does not lawfully deal with
the manufacture of explosives shall be prima facie evidence that such article
is intended to be used in the unlawful/illegal manufacture of explosives.
Sec. 5. Tampering of Firearm's Serial Number. The penalty of prision
mayor shall be imposed upon any person who shall unlawfully tamper,
change, deface or erase the serial number of any firearm.
Sec. 6. Repacking or Altering the Composition of Lawfully
Manufactured Explosives. The penalty of prision mayor shall be imposed
upon any person who shall unlawfully repack, alter or modify the
composition of any lawfully manufactured explosives.
Sec. 7. Unauthorized Issuance of Authority to Carry Firearm and/or
Ammunition Outside of Residence. The penalty of prision correccional
shall be imposed upon any person, civilian or military, who shall issue
authority to carry firearm and/or ammunition outside of residence, without
authority therefor.
Sec. 8. Rules and Regulations. The Chief of the Philippine
Constabulary shall promulgate the rules and regulations for the effective
implementation of this Decree.
Sec. 9. Repealing Clause. The provisions of Republic Act No. 4,
Presidential Decree No. 1728 and all laws, decrees, orders, instructions,
rules and regulations which are inconsistent with this Decree are hereby
repealed, amended or modified accordingly.
Sec. 10. Effectivity. This Decree shall take effect after fifteen (15) days
following the completion of its publication in the Official Gazette. Done in

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The City of Manila, this 29th day of June, in the year of Our Lord, nineteen
hundred and eighty-three.

REPUBLIC ACT NO. 8294

AN ACT AMENDING THE PROVISIONS OF PRESIDENTIAL
DECREE NO. 1866, AS AMENDED, ENTITLED "CODIFYING
THE LAWS ON ILLEGAL/UNLAWFUL POSSESSION,
MANUFACTURE, DEALING IN, ACQUISITION OR DISPOSITION
OF FIREARMS, AMMUNITION OR EXPLOSIVES OR
INSTRUMENTS USED IN THE MANUFACTURE OF FIREARMS,
AMMUNITION OR EXPLOSIVES, AND IMPOSING STIFFER
PENALTIES FOR CERTAIN VIOLATIONS THEREOF, AND FOR
RELEVANT PURPOSES"

SECTION 1. Section 1 Presidential Decree No. 1866,

as amended, is hereby further amended to read as
follows:
"SECTION 1. Unlawful manufacture, sale,
acquisition, disposition or possession of
firearms or ammunition or instruments used or
intended to be used in the manufacture of
firearms or ammunition. — The penalty of
prision correccional in its maximum period and
a fine of not less than Fifteen thousand pesos
(P15,000) shall be imposed upon any person who
shall unlawfully manufacture, deal in, acquire,
dispose, or possess any low powered firearm,
such as rimfire handgun, .380 or .32 and other
firearm of similar firepower, part of firearm,
ammunition, or machinery, tool or instrument
used or intended to be used in the manufacture
of any firearm or ammunition: Provided, That no
other crime was committed.

"The penalty of prision mayor in its minimum

period and a fine of Thirty thousand pesos
(P30,000) shall be imposed if the firearm is
classified as high powered firearm which
includes those with bores bigger in diameter

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than .38 caliber and 9 millimeter such as
caliber .40, .41, .44, .45 and also lesser
calibered firearms but considered powerful such
as caliber .357 and caliber .22 center-fire
magnum and other firearms with firing
capability of full automatic and by burst of
two or three: Provided, however, That no other
crime was committed by the person arrested.

"If homicide or murder is committed with the

use of an unlicensed firearm, such use of an
unlicensed firearm shall be considered as an
aggravating circumstance.

"If the violation of this Section is in

furtherance of or incident to, or in connection
with the crime of rebellion or insurrection,
sedition, or attempted coup d'etat, such
violation shall be absorbed as an element of
the crime of rebellion, or insurrection,
sedition, or attempted coup d'etat.

"The same penalty shall be imposed upon the

owner, president, manager, director or other
responsible officer of any public or private
firm, company, corporation or entity, who shall
willfully or knowingly allow any of the
firearms owned by such firm, company,
corporation or entity to be used by any person
or persons found guilty of violating the
provisions of the preceding paragraphs or
willfully or knowingly allow any of them to use
unlicensed firearms or firearms without any
legal authority to be carried outside of their
residence in the course of their employment.

"The penalty of arresto mayor shall be imposed

upon any person who shall carry any licensed
firearm outside his residence without legal
authority therefor."

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SECTION 2. Section 3 of Presidential Decree No.
1866, as amended, is hereby further amended to read
as follows:
"SECTION 3. Unlawful manufacture, sale,
acquisition, disposition or possession of
explosives. — The penalty of prision mayor in
its maximum period to reclusion temporal and a
fine of not less than Fifty thousand pesos
(P50,000) shall be imposed upon any person who
shall unlawfully manufacture, assemble, deal
in, acquire, dispose or possess hand
grenade(s), rifle grenade(s), and other
explosives, including but not limited to
'pillbox,' 'molotov cocktail bombs,' 'fire
bombs,' or other incendiary devices capable of
producing destructive effect on contiguous
objects or causing injury or death to any
person.

"When a person commits any of the crimes

defined in the Revised Penal Code or special
laws with the use of the aforementioned
explosives, detonation agents or incendiary
devices, which results in the death of any
person or persons, the use of such explosives,
detonation agents or incendiary devices shall
be considered as an aggravating circumstance.

"If the violation of this Section is in

furtherance of, or incident to, or in
connection with the crime of rebellion,
insurrection, sedition or attempted coup
d'etat, such violation shall be absorbed as an
element of the crimes of rebellion,
insurrection, sedition or attempted coup
d'etat.

"The same penalty shall be imposed upon the

owner, president, manager, director or other
responsible officer of any public or private

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 firm, company, corporation or entity, who shall
willfully or knowingly allow any of the
explosives owned by such firm, company,
corporation or entity, to be used by any person
or persons found guilty of violating the
provisions of the preceding paragraphs."
SECTION 3. Section 5 of Presidential Decree No.
1866, as amended, is hereby further amended to read
as follows:
"SECTION 5. Tampering of firearm's serial
number. — The penalty of prision correccional
shall be imposed upon any person who shall
unlawfully tamper, change, deface or erase the
serial number of any firearm."
SECTION 4. Section 6 of Presidential Decree No.
1866, as amended, is hereby further amended to read
as follows:
"SECTION 6. Repacking or altering the
composition of lawfully manufactured
explosives. — The penalty of prision
correccional shall be imposed upon any person
who shall unlawfully repack, alter or modify
the composition of any lawfully manufactured
explosives."
SECTION 5. Coverage of the Term Unlicensed Firearm.
— The term unlicensed firearm shall include:
1) firearms with expired license; or

2) unauthorized use of licensed firearm in the

commission of the crime.
SECTION 6. Rules and regulations. — The Department
of Justice and the Department of the Interior and
Local Government shall jointly issue, within ninety
(90) days after the approval of this Act, the
necessary rules and regulations pertaining to the
administrative aspect of the provisions hereof,
furnishing the Committee on Public Order and
Security and the Committee on Justice and Human
Rights of both Houses of Congress copies of such
rules and regulations within thirty (30) days from

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the promulgation hereof.

SECTION 7. Separability clause. — If, for any

reason, any section or provision of this Act is
declared to be unconstitutional or invalid, the
other sections or provisions thereof which are not
affected thereby shall continue to be in full force
and effect.

SECTION 8. Repealing clause. — All laws, decrees,

orders, rules and regulations or parts thereof
inconsistent with the provisions of this Act are
hereby repealed, amended, or modified accordingly.

SECTION 9. Effectivity. — This Act shall take

effect after fifteen (15) days following its
publication in the Official Gazette or in two (2)
newspapers of general circulation.

Approved: June 6, 1997

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 II. EXPLANATION
WHAT ARE THE PROHIBITED UNDER PD 1866?

 Unlawful Manufacture, Sale, Acquisition, Disposition or

Possession of Firearms or Ammunition or Instruments
Used or Intended to be Used in the Manufacture of
Firearms of Ammunition.

 The penalty of prision mayor shall be imposed upon any

person who shall carry any licensed firearm outside his
residence without legal authority therefor.

PRESUMPTION OF ILLEGAL MANUFACTURE OF FIREARMS OR

AMMUNITION.

The possession of any machinery, tool or instrument used

directly in the manufacture of firearms or ammunition, by any
person whose business or employment does not lawfully deal with
the manufacture of firearms or ammunition, shall be prima facie
evidence that such article is intended to be used in the
unlawful/illegal manufacture of firearms or ammunition.

PRESUMPTION OF UNLAWFUL MANUFACTURE

The possession of any machinery, tool or instrument directly

used in the manufacture of explosives, by any person whose
business or employment does not lawfully deal with the
manufacture of explosives shall be prima facie evidence that such

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article is intended to be used in the unlawful/illegal manufacture of
explosives.

TAMPERING OF FIREARM'S SERIAL NUMBER.

The penalty of prision mayor shall be imposed upon any

person who shall unlawfully tamper, change, deface or erase the
serial number of any firearm.

REPACKING OR ALTERING THE COMPOSITION OF LAWFULLY

MANUFACTURED EXPLOSIVES.

The penalty of prision mayor shall be imposed upon any

person who shall unlawfully repack, alter or modify the composition
of any lawfully manufactured explosives.

UNAUTHORIZED ISSUANCE OF AUTHORITY TO CARRY FIREARM

AND/OR AMMUNITION OUTSIDE OF RESIDENCE.

The penalty of prision correccional shall be imposed upon any

person, civilian or military, who shall issue authority to carry
firearm and/or ammunition outside of residence, without authority
therefor.

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 III. JURISPRUDENCE

G.R. No. 94784 May 8, 1992

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.

ANGELITO CALING @ Lito, accused-appellant.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

NARVASA, C.J.:p

The refusal of a driver to move his truck to allow another to pass a

narrow street, which the operator of the second vehicle took to be
an act of insolent indifference to a colleague, as well as the
irrational anger of the latter's companion at such an act, are what
have resulted in the former's violent demise and the consequent
proceedings at bar.
The material events took place in Zone I, San Mariano, Isabela, at
about 11 o'clock in the evening of August 2, 1989, and for the most
part are not in serious dispute. At that place and time, Emerchon
Pua, a truck driver, was drinking beer and gin in front of his house,
together with Marcelino Alindayu, and four others. Emerchon's
brother, Raymundo Pua, was also there. It was while they were thus
occupied that another truck driver, Angelito Caling, arrived at the
place, driving his own vehicle, a 2 1/2 ton, 6 x 6 truck. In the truck
with Caling was Felino Neri, a nephew of Caling's employer, a
person named Boy Go. Caling's truck could not pass the road leading
to his employer's house because two of Emerchon's own trucks,

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were blocking the way. Caling asked Emerchon to move his trucks,
but the latter said, "Sorry, the truck won't start." Obviously
irritated, Caling then roughly backed up his truck and took another
road to his employer's residence.

Not long afterwards, while at his employer's house, Caling heard

one of Emerchon's trucks being started. Believing they had been lied
to and unnecessarily inconvenienced, Caling and Felino Neri decided
to confront Emerchon. Neri had with him an M-14 rifle. On the way
to Emerchon's house, they were seen by Elpidio Ancheta who asked
them if anything was wrong. The answer was that their truck had
not been allowed to pass, or words to that effect.
Caling and Neri saw Emerchon in his truck. Caling forthwith went up
the stepping or running board of the vehicle and said to him:
"Putang ina mo, pare, umaandar pala, sabi mo hindi umaandar, para
kang hindi logger, pareho tayo lahat loggers." Emerchon replied that
the truck really would not start earlier, and he was unaccountably
able to start it then, "only by chance." Evidently unsatisfied with
Emerchon's explanation, Caling tried to grab the key or the steering
wheel from Emerchon. But after a short while Caling was pulled
down from the truck by Emerchon's brother, Raymundo Pua, and
some of those who had been drinking with Emerchon. Emerchon
also alighted.

At this point, two shots were heard from the rear of the truck, after
which Caling's companion, Felino Neri, ran towards Emerchon
stating the obvious, that he had a rifle. Caling allegedly told Neri,
"Banatan mo na, pare." Neri then fired at Emerchon, hitting him
below the chest, on the left side of the abdomen. Emerchon Pua
started to fall. His brother, Raymundo took hold of him, placed him
in the truck and rushed him to the Isabela Provincial Hospital at
Ilagan, Isabela. Nothing could however be done for Emerchon. He
expired from the bullet wounds inflicted on him, numbering two,
according to the physician who conducted the post-mortem
examination.

The Provincial Fiscal filed with the Regional Trial Court at Ilagan,
Isabela, an information charging Caling and Neri with "qualified

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illegal possession of firearm used in murder" under Republic Act No.
1866.1 The information alleged that:
1) Caling and Neri had "in their possession and under their
control and custody an M-14 rifle;"
2) they had not however "first . . obtained the necessary permit
and/or license therefor" and hence were "not . . allowed or
authorized by law to keep, possess and carry firearm;"

3) using said firearm, they did "assault, attack and shoot . . one
Emerchon M. Pua, inflicting upon him gunshot wound which directly
caused his death;" and
4) they did so in conspiracy, and with "evident premeditation and
treachery."
Only Caling was arraigned and stood trial. Felino Neri eluded arrest
and, as far as the record shows, has not been apprehended to this
day.
The facts just narrated were deemed to have been established
beyond reasonable doubt by the Trial Court on the basis of the
testimony of four (4) witnesses, namely: Raymond Pua and
Marcelino Alindayu, eyewitnesses to the shooting; Elpidio Ancheta,
who saw Caling and Neri going to and coming from Emerchon Pua's
house after gunshots had been heard; and Dr. Conrado Ancheta,
who attested to the death of the victim. The fourth and only other
witnesses of the prosecution, Flordeliza Pua, Emerchon's widow,
deposed only as regards the damages suffered by her as a result of
her husband's demise.

Caling, who was the sole defense witness, testified that he had
indeed gone back to Emerchon's house on hearing Emerchon starting
one of his trucks, precisely to question him about his earlier
professed inability to move his trucks. He claims however that
instead of getting a satisfactory answer, Emerchon's companions
began to maul him, and desisted only after some gunshots were
heard; that he saw Emerchon sitting on the ground, saying he had
been hit. He left the place and went to his employer's house,
followed by Felino Neri who was running. Caling denies ever having
said to Neri, '"Banatan mo na, pare," that it was in fact one of
Emerchon's companions who had uttered those words, addressed to
one of his friends who was armed with a pistol.

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As already stated, the Trial Court found Caling's guilt of the crime,
as co-conspirator, to have been proven beyond reasonable doubt,
but that killing could not be characterized as murder but only as
homicide, since there was no adequate proof of the qualifying
circumstance of evident premeditation or treachery. It rendered
judgment on June 28, 1990 convicting Caling "as co-principal of the
special complex crime of Illegal Possession of Unlicensed Firearm
Used in Homicide as provided for and defined under the 2nd
paragraph of Sec. 1 of P.D. 1866 as amended." Caling was
accordingly "sentenced to a penalty of reclusion perpetua and to
indemnify the heirs of the offended party the sum of P45,000.00."
The case in so far as concerned Felino Neri was "archived pending
his arrest."

From this sentence Caling has appealed to this Court and here
attributes to the Trial Court the following errors:
1) failing to perceive that "the evidence for the prosecution . .
failed to establish all the essential elements of the crime charged;"
and
2) "finding accused-appellant guilty beyond reasonable doubt of
the special complex crime of illegal possession of unlicensed
firearm used in homicide."
The Solicitor General agrees with these basic propositions and
opines that the appellant should be acquitted, "without prejudice to
the filing of an Information for Murder or Homicide, as the case may
be, against appellant for the death of Emerchon M. Pua, if none has
as yet been filed." 2

It seems that the Court a quo did indeed err in believing that there
is such a thing as "the special complex crime of Illegal Possession of
Unlicensed Firearm Used in Homicide as provided for and defined
under the 2nd paragraph of Sec. 1 of P.D. 1866 as amended," and
declaring Caling guilty thereof. The legal provision invoked, "Sec. 1
of P.D. 1866, as amended," reads as follows:

Sec. 1. Unlawful Manufacture, Sale, Acquisition, Disposition or

Possession of Firearms or Ammunition or Instruments Used or
Intended to be Used in the Manufacture of Firearms or Ammunition.

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The penalty of reclusion temporal in its maximum period to
reclusion perpetua shall be imposed upon any person who shall
unlawfully manufacture, deal in, acquire, dispose, or possess any
firearm, part of firearm, ammunition or machinery, tool or
instrument used or intended to be used in the manufacture of any
firearm or ammunition.

If homicide or murder is committed with the use of an unlicensed

firearm, the penalty of death shall be imposed.

What is penalized in the first paragraph, insofar as material to the

present case is the sole, simple act of a person who shall, among
others, "unlawfully possess any firearm . . (or) ammunition . ."
Obviously, possession of any firearm is unlawful if the necessary
permit and/or license therefor is not first obtained. To that act is
attached the penalty of reclusion temporal, maximum, to reclusion
perpetua. Now, if "with the use of (such) an unlicensed firearm, a
"homicide or murder is committed," the crime is aggravated and is
more heavily punished, with the capital punishment.

The gravamen of the offense in its simplest form is, basically, the
fact of possession of a firearm without license. The crime may be
denominated simple illegal possession, to distinguish it from its
aggravated form. It is aggravated if the unlicensed firearm is used
in the commission of a homicide or murder under the Revised Penal
Code. But the homicide or murder is not absorbed in the crime of
possession of the unlicensed firearm; neither is the latter absorbed
in the former. There are two distinct crimes that are here spoken
of. One is unlawful possession of a firearm, which may be either
simple or aggravated, defined and punished respectively by the first
and second paragraphs of Section 1 of PD 1866. The other is
homicide or murder, committed with the use of an unlicensed
firearm. The mere possession of a firearm without legal authority
consummates the crime under PD 1866, and the liability for illegal
possession is made heavier by the firearm's use in a killing. The
killing, whether homicide or murder, is obviously distinct from the
act of possession, and is separately punished and defined under the
Revised Penal Code.

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The use of an unlicensed firearm in the perpetration of a homicide
or murder gives rise to the crime of unlawful possession in its
aggravated form, not the "special complex crime" of illegal
possession with homicide or murder. A prosecution for unlawful
possession under PD 1866 can only result, assuming evidence of
guilt to be adequate, in a conviction for unlawful possession, simple
or aggravated, not for homicide or murder.
The next question is whether or not in light of the evidence on
record, a conviction of Caling may be justified as co-principal in the
crime of illegal possession of an unlicensed firearm, aggravated by
its use in a killing, within the meaning of PD 1866.

The elements of the offense of what may be denominated "simple

illegal possession" under PD 1866 are two: (a) possession of a
firearm or ammunition, and (b) lack or absence of prior license or
permit to possess the same. In a prosecution for this offense,
therefore, it is incumbent on the Government to prove, not only
that the accused was in possession of a firearm in this case, an M-
14 rifle, but also that said accused had not first obtained a license
or permit therefor from the appropriate authorities.

Notable in the proofs of the prosecution is (1) the absence of any

evidence to establish that Neri's possession of the rifle was
unlawful; i.e., no license or permit had been first obtained
therefore; and (2) the absence of the rifle itself.
Of course, the actuality of Felino Neri's possession of a rifle,
supposedly an M-14, cannot but be conceded, in view of the
evidence. There is, however, nothing in the record by which a
conclusion of whether that rifle is unlicensed or not and therefore
unlawfully possessed or not may be drawn. Given this undisputable
circumstance, it is not possible to find either Neri or Caling guilty of
unlawful possession of the weapon. If the crime of simple unlawful
possession of firearm cannot be ascribed to Caling and Neri, a
fortiori, the offense of unlawful possession in its aggravated form
cannot be imputed to them.

The absence of proof of that negative fact is easily explained. It is

due not only to what the Solicitor General describes as the undue

16
preoccupation of the prosecution "to establish conspiracy in the
killing of the victim," but also to the absence of the rifle itself. That
weapon, as earlier observed, has not been recovered from either
suspect, and therefore has not been presented in evidence; and this
has effectively closed the door to any proof of the negative fact
that no license or permit therefore has been issued to either Neri or
Caling.

Since in the present state of the evidence it is not rationally

possible to make a conclusion that the M-14 rifle in question was
unlawfully possessed and, consequently, it is not legally possible to
pronounce a verdict of conviction under PD 1866 against either
Caling or Neri, and it appearing that neither of them is charged with
homicide or murder under the criminal code, it is therefore useless
to inquire into the issue of whether or not Caling is culpable, as co-
principal or otherwise, in Neri's act of homicide or murder, as the
case may be, on the basis of Caling's purported statement to Neri,
"Banatan mo na, pare," and the other acts shown to have been done
by him on the occasion of the killing.

Whether or not, as the Solicitor General intimates, a charge of

homicide or murder lies against either Caling or his companion,
Felino Neri, who is at large is a question that the Court will not
answer at this time.
WHEREFORE, the judgment of the Regional Trial Court at Ilagan,
Isabela (Branch 18) in Criminal Case No. 1202, dated June 28, 1990,
is REVERSED and SET ASIDE, and the accused-appellant, Angelito
Caling @ Lito, is ACQUITTED, with costs de officio.

SO ORDERED.

Cruz, Griño-Aquino, Medialdea and Bellosillo, JJ., concur.

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 G.R. No. 84857 January 16, 1998

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.

RODOLFO DELA ROSA Y AVILES, ANTONIO DELA

ROSA Y AVILES, and RODOLFO QUIMSON Y NAVA
(At large), accused-appellants.

PUNO, J.:p

Rodolfo dela Rosa y Aviles appeals the decision of the Regional Trial
Court, First Judicial Region, Branch 38, Lingayen, Pangasinan,
convicting him of illegal possession of firearms and explosives and
imposing the penalty of reclusion perpetua. 1
On January 27, 1987, an information for illegal possession of
firearms and explosives was filed against RODOLFO DELA ROSA y
AVILES, ANTONIO DELA ROSA y AVILES, CRESENCIO REYES y DELA
CRUZ and RODOLFO QUIMSON y NAVA, to wit:

That on or about the 9th of December 1986, in sitio (sic) Kadampat,

Barangay Bolo, municipality (sic) of Labrador, province (sic) of
Pangasinan, New Republic of the Philippines and within the
jurisdiction of this Honorable Court, the abovementioned accused,
conspiring, confederating and helping one another, did then and
there wilfully (sic), unlawfully and feloniously have in their
possession, custody and control three (3) homemade gauge 12
shotguns and fourteen (14) pieces of dynamite explosives, without
first securing the necessary permit/license to possess the same.

Contrary to Presidential Decree No. 1866. 2

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All accused pleaded not guilty when arraigned on February 3, 1987.
On March 12, 1987, the four accused withdrew their plea of not
guilty and substituted it with a plea of guilt. After ascertaining that
the plea of guilt was not made improvidently, the lower court
imposed upon them the corresponding penalty. 3 However, on
March 19, 1987, the four (4) accused filed a motion withdrawing
their plea of guilt. 4 The lower court granted the motion in a
resolution dated March 25, 1987. 5 Thereafter, trial proceeded.
However, accused Cresencio Reyes changed his mind again and
pleaded guilty to a lesser offense punishable under the last
paragraph of Section 1 of Presidential Decree No. 1866. The court
accepted the plea and sentenced him accordingly. He was utilized
as a witness by the prosecution. The trial proceeded against the
three remaining accused.

The prosecution established that in the morning of December 9,

1986, Rodolfo dela Rosa, Antonio dela Rosa, Cresencio Reyes and
Rodolfo Quimson, surrendered to Kagawad Valeriano Rigor of Sitio
Kadampat, Bolo, Labrador, Pangasinan claiming they want to lead a
new life. They informed him that Benjamin Nano, alias Kumander
Tamang, a member of the New People's Army (NPA), was shot by
one of them. The four had with them a short shotgun (Exhibit A)
and a bag containing several sticks of dynamite (Exhibit C to C-7). 6
Kagawad Rigor offered them breakfast and afterwards went to the
police station to report the presence of four (4) surrenderees in his
house. At the police station, Patrolman Gasline Fernandez recorded
the report in the police blotter. Cpl. Crispin Cancino, the station
commander, brought along several policemen and proceeded to the
house of Kagawad Rigor. When the group arrived, only Kagawad
Rigor and Cpl. Cancino entered the house. The other policemen
stayed outside to secure the area. Inside the house, Kagawad Rigor
introduced the surrenderees to Cpl. Cancino and showed him the
short shotgun (Exhibit A) and the bag (Exhibit C to C-7) containing
several sticks of dynamite. Then, all accused, except Rodolfo
Quimson, who was left behind to guide the police in recovering the
body of Kumander Tamang, were brought to the Philippine
Constabulary (PC) Headquarters in Lingayen . In Lingayen, they
proceeded at the municipal building and called on Mayor Calixto
Pancho. The surrenderees had their picture taken with Mayor

19
Pancho and Kagawad Rigor. Afterwards, they were brought to the
police headquarters, where their statements were taken by Cpl.
Arsenio Paragas and Cpl. Cipriano Castillo. 7 Meanwhile, the
charred body of Benjamin Nano was recovered by the police in Sitio
Tebel Patar. 8

The following day, Cresencio Reyes informed the police that there
were firearms left buried in Sitio Tebel Patar. Reyes pointed to the
hiding place which was covered by banana leaves. When the banana
leaves were removed, the police unearthed two (2) long barreled
shotguns (Exhibits B and D). 9
On the other hand, the three accused contend they were recruited
by Kumander Tamang on different dates. Accused Rodolfo dela Rosa
testified that he first saw Kumander Tamang on October 28, 1986 at
a relative's wake. Kumander Tamang asked him whether he owned a
piece of land. He said he did not, for he was only a sawali maker.
Kumander Tamang then convinced him to join the New People's
Army (NPA). He told Kumander Tamang he would think it over. On
November 1, 1986, Kumander Tamang went to his house and
reiterated his offer to him. Cresencio Reyes was with Kumander
Tamang at that time. Reyes was carrying a bag (Exhibit C) while
Kumander Tamang had a shotgun (Exhibit A). On November 10,
1986, Kumander Tamang went to his house and succeeded in
persuading him to join the NPA. Kumander Tamang brought him at a
hideout in the mountains of Sitio Tebel Patar, Labrador,
Pangasinan.

On the evening of November 14, 1986, Rodolfo dela Rosa, Kumander

Tamang and Cresencio Reyes, descended the mountains and
proceeded to the house of Antonio dela Rosa, who was Rodolfo's
cousin. At that time, Kumander Tamang was carrying a shotgun
(Exhibit A) while Reyes was carrying a bag (Exhibit C). When they
arrived at said place, Kumander Tamang and Reyes entered the
house and stayed inside for ten (10) minutes. When the two came
out, dela Rosa was with them. All of them headed for the mountains
afterwards. On November 20, 1986, Rodolfo dela Rosa, Kumander
Tamang Cresencio Reyes and Antonio dela Rosa went to the house
of Rodolfo Quimson. Again, only Kumander Tamang and Reyes
entered Quimson's house. They stayed inside for 15 minutes. When

20
the two came out, Quimson was with them. Afterwards, they
returned to their hideout in the mountains. 10

On December 8, 1986, at 10:00 o'clock in the morning, Kumander

Tamang called them to a meeting. Kumander Tamang took the bag
(Exhibit C) which Reyes always carries and opened it. The bag
yielded several sticks of dynamite. Kumander Tamang told them
that at five o'clock in the afternoon they would go down Sitio
Kadampat and assassinate Kagawad Rigor. 11 He then instructed
them on how to use the explosives. After the meeting, they
returned to their hut and rested. At two o'clock in the afternoon,
they heard a gunshot from the hut of Kumander Tamang. They
rushed outside and saw Reyes holding Kumander Tamang's shotgun.
He announced that Kumander Tamang was dead. He told them it
would be better to surrender themselves to the authorities. He
ordered them to gather the shotgun and the sticks of dynamite
while he set on fire Kumander Tamang's hut. At five o'clock in the
afternoon, they descended the mountains and headed towards Sitio
Kadampat. At 7:00 a.m., the following day, they reached the house
of Kagawad Rigor. They saw the Kagawad sitting by himself on a
bench outside his house. Only Reyes approached the Kagawad, so
as not to frighten him. The three others waited by the roadside.
After five (5) minutes, Reyes signalled the three to approach the
house. Kagawad Rigor let them inside the house and offered them
breakfast. Reyes placed the shotgun and the bag on top of the
dining table. Kagawad Rigor then left the house and went to the
police station. 12 He returned with several policemen. At first, the
policemen pointed their guns at the accused but Kagawad Rigor told
them there was no need for they were surrendering themselves to
the authorities. Kagawad Rigor then showed the policemen the
shotgun and the bag containing the sticks of dynamite. The
policemen took all the surrenderees to the Municipal Hall, except
Rodolfo Quimson, who was left behind, to lead the police to
Kumander Tamang' s body. At the Municipal Hall, Mayor Calixto
Pancho greeted and congratulated them for coming back to the fold
of law. They had their picture taken with Mayor Pancho and
Kagawad Rigor. Afterwards, they were brought to the police
headquarters. When an investigator started to question them, they
asked for a lawyer to assist them but the investigator said they

21
would not need one for they were surrenderees and would soon be
freed. Hence, they gave their subscribed statements to the police.
After their statements were taken, the police took them back to
the police station in Labrador, where they were detained. On
January 5, 1987, they were transferred to the provincial jail in
Lingayen. They denied ever seeing the two (2) long firearms
(Exhibits C and D) which were recovered in Sitio Tebel Patar. They
saw said firearms for the first time when the prosecution presented
them as exhibits during the trial. 13

When trial concluded, the lower court convicted the three (3)
accused. Antonio dela Rosa did not appeal 14 while Rodolfo
Quimson escaped 15 from the National Bilibid Prisons (NBP) where
he was detained after the lower court convicted him. Only Rodolfo
dela Rosa appealed contending that:
THE TRIAL COURT ERRED IN FINDING THE ACCUSED-APPELLANT
RODOLFO DELA ROSA GUILTY BEYOND REASONABLE DOUBT OF THE
CRIME OF ILLEGAL POSSESSION OF FIREARMS AND EXPLOSIVES,
DEFINED AND PENALIZED UNDER THE PROVISIONS OF PRESIDENTIAL
DECREE NO. 1866.

We find merit in the appeal.

It is undisputed that accused-appellant Rodolfo dela Rosa and his
companions were the ones who surrendered the subject firearm
(Exhibit A) and explosives (Exhibit C to C-7) to Kagawad Rigor.
However, Rodolfo dela Rosa denies that he was in possession of said
ammunitions in the manner punishable by law. According to him, his
real intention was merely to turn over the ammunitions, which were
owned by Kumander Tamang, to the authorities. The trial court
perceived otherwise. It declared that since Rodolfo dela Rosa joined
the New People's Army (NPA), there is reason to conclude that he
provided himself with arms such as Exhibits A, B, C to C-7 and D. 16
And since mere possession is sufficient to convict a person for
crimes which are malum prohibitum like illegal possession of
firearms, appellant dela Rosa must be convicted. It is of no moment
that he surrendered the ammunitions to the authorities.

We fail to see how appellant dela Rosa could be convicted of illegal

possession of firearms based on the above reasoning. Section 1 of

22
Presidential Decree No. 1866 punishes any person who shall ". . .
unlawfully manufacture, deal in, acquire, dispose or possess any
firearms, part of firearm, ammunition, or machinery, tool or
instrument used or intended to be used in the manufacture of any
firearm or ammunition." (emphasis supplied) 17
Broken down into its salient elements, illegal possession of firearms
is committed when the holder thereof:

(i) possesses a firearm; and

(ii) lacks the authority or license to possess it. 18
In People v. de Gracia 19, we clarified the meaning of possession
for the purpose of convicting a person under PD 1866, thus:

But, is the mere fact of physical or constructive possession

sufficient to convict a person for unlawful possession of firearms or
must there be an intent to possess to constitute a violation of the
law? This query assumes significance for illegal possession of
firearms is a malum prohibitum, punished by a special law, in which
case good faith and absence of criminal intent are not valid
defenses.
When a crime is punished by a special law, as a rule, intent to
commit the crime is not necessary, it is sufficient that the offender
has the intent to perpetrate the act prohibited by the special law.
Intent to commit the crime and intent to perpetrate the act must
be distinguished. A person may not have consciously intended to
commit a crime but he intended to commit an act, and that act is
by the very nature of things, the crime itself. In the first (intent to
commit the crime), there must be criminal intent; in the second
(intent to perpetrate the act) it is enough that the prohibited act is
done freely and consciously.

In the present case, a distinction should be made between criminal

intent and intent to possess. While mere possession without
criminal intent, is sufficient to convict a person for illegal
possession of a firearm, it must still be shown that there was
animus possidendi or an intent to possess on the part of the
accused. Such intent to possess is, however, without regard to any
other criminal or felonious intent which the accused may have
harbored in possessing the firearm. Criminal intent here refers to

23
the intention of the accused to commit an offense with the use of
an unlicensed firearm. This is not important in convicting a person
under Presidential Decree No. 1866. Hence, in order that one may
be found guilty of a violation of the decree, it is sufficient that the
accused had no authority or license to possess a firearm, and that
he intended to possess the same, even if such possession was made
in good faith and without criminal intent.

In the early case of People v. Estoista 20 , we held that a

temporary, incidental, casual, or harmless possession of firearms is
not punishable. We stated therein that:

The terms "control" and "dominion" themselves are relative terms

not susceptible of exact definition, and opinions on the degree and
character of control or dominion sufficient to constitute a violation
vary. The rule laid down in the United States courts rule which we
here adopt is that temporary, incidental, casual or harmless
possession or control of a firearm is not a violation of a statute
prohibiting the possessing or carrying of this kind of weapon. A
typical example of such possession is where "a person picks up a
weapon or hands it to another to examine or hold for a moment."

Also, in People v. Remereta 21, where the question posed was

whether an accused who stole a firearm could simultaneously be
prosecuted for theft and illegal possession of firearms, we held that
transient possession is not sufficient to convict one under the latter
crime, thus:

While in stealing a firearm the accused must necessarily come into

possession thereof, the crime of illegal possession of firearms is not
committed by mere transient possession of the weapon. . . . Thus,
stealing a firearm with intent not to use but to render the owner
defenseless, may suffice for purposes of establishing a case of
theft, but would not justify a charge for illegal possession of
firearm, since intent to hold and eventually use the weapon would
be lacking.

Hence, the kind of possession punishable under PD No. 1866 is one

where the accused possessed a firearm either physically or

24
constructively with animus possidendi or intention to possess the
same. 22 It is not enough that the firearm was found in the person
of the accused who held the same temporarily and casually or for
the purpose of surrendering the same. Admittedly, animus
possidendi is a state of mind. As such, what goes on into the mind
of an accused, as his real intent, could be determined solely based
on his prior and coetaneous acts and the surrounding circumstances
explaining how the subject firearm came to his possession. 23

Thus, in People v. Leo Lian 24, we rejected the argument of the

accused that the charge against him should be dismissed because
there was no animus possidendi on his part. In said case, the
accused contended that he was on his way to the municipal hall to
surrender the firearm when he met some of his friends. He then
forgot about the firearm, until the police officer unceremoniously
seized the same from him, affording him no chance to surrender it
himself.

In rejecting accused-appellant's claim, Justice Regalado wrote that:

. . . , the Court finds it hard to believe that appellant still had to

hide the firearm in his waist before setting out to surrender it to
the authorities when he could have taken the gun to the town hall
in the same bag in which he found it, in which case it would have
been safer and would have avoided detection. In fine, the
indispensable elements of possession without the necessary
authority or license and the corresponding attendance of animus
possidendi have both been convincingly established by the
prosecution to warrant appellant's conviction . . . .

That animus possidendi is determinable from the prior and

simultaneous acts of the accused is further exemplified while
accused by People v. Lubo. 25 In this case, while accused-appellant
pleaded lack of animus possidendi, his conduct belied the same.
Accused-appellant Lubo was found to have secured a "temporary
license" for the subject firearm. Under such circumstance, we held
that accused-appellant intended to possess the subject firearm
beyond reasonable doubt.

25
Coming now to the case before us it is undisputed that the police
officers never really arrested Rodolfo dela Rosa, for the truth of the
matter was that there was no need for such arrest. Dela Rosa and
his companions had surrendered the ammunitions to Kagawad Rigor
even before the police arrived. In fact, the police learned of the
surrender because Kagawad Rigor reported it to the police station in
Labrador. This is in contrast to People v. Leo Lian, where appellant
Lian merely feigned intention to surrender the firearm which the
police found in his possession . In the case at bar, appellant dela
Rosa's intention to surrender the ammunitions was very clear from
the beginning and he was able to execute the same.

Corollarily, the Office of the Solicitor General's contention that dela

Rosa was in constructive possession of the ammunitions is irrelevant
for possession whether physical or constructive without animus
possidendi is not punishable. Dela Rosa's possession was harmless,
temporary and only incidental for the purpose of surrendering the
ammunitions to the authorities. Consequently, the prosecution
failed to establish the first element of animus possidendi.

Similarly, the records are bereft of sufficient proof that Rodolfo

dela Rosa possessed the ammunitions without authority to do so.
Except for the preliminary examination of Pfc. Cipriano P. Castillo
conducted by Municipal Circuit Trial Judge Benjamin N. Abella, 26
the prosecution offered no other evidence during the trial which
showed lack of license. In the preliminary examination, the only
relevant question asked by the judge was:

JUDGE ABELLA.
Q: Did you or the Stn. Commander ask or verify whether any or
all of the above-named suspects have any license to possess the
above-mentioned firearms and explosives?
A: Yes, sir. But they stated that they have no license to possess
any of the firearms and explosives which were recovered from their
possession, control and custody.

The Office of the Solicitor General offers the extrajudicial

statement of accused Rodolfo dela Rosa 27 that Kumander Tamang
supplied him with explosives and dynamite in furtherance of

26
subversive activities. 28 According to the Solicitors, the
extrajudicial statement is sufficient to prove that the firearms were
illegally possessed. The presumption is erroneous. Aside from the
fact that dela Rosa repudiated the extrajudicial statement because
it was uncounselled 29 , the same did not contain any admission
that he had no license to possess the firearm. And, even if it had
contained an admission that he had no license, it still would not
have sufficed.

In People v. Solayao 30, the prosecution relied only on the

testimonial evidence that accused-appellant admitted before the
police officer who accosted him that he did not have any authority
or license to carry the subject firearm when he was asked if he had
one. In acquitting the accused-appellant, we stressed that the
prosecution has the burden of proving beyond reasonable doubt the
lack of license which is a negative averment. 31 The burden is in
consonance with the evidentiary rule that "when a negative is
averred in a pleading, or a plaintiff's case depends upon the
establishment of a negative, and the means of proving the fact are
equally within the control of each party, then the burden of proof is
upon the party averring the negative." 32 More importantly, the
burden placed on the shoulders of the prosecution to prove beyond
reasonable doubt the lack of license is premised on the
constitutional presumption of innocence of the accused. 33 Thus, in
People v. Solayao, this Court suggested that the prosecution could
have, at the very least, presented a certification from the Firearms
and Explosives Unit that the accused did not have the license to the
gun. But, an extrajudicial admission of the accused, solely, will not
suffice.

The Office of the Solicitor General contends that for accused-

appellant to join the New People's Army and stay in the mountains
without arming themselves is highly improbable. Thus, there is
reason to believe that they illegally possessed the ammunitions to
further their subversive activities even prior to surrendering them
to the authorities. We reiterate that mere suspicion will not prove
the prosecution's case in court. In a prosecution under Presidential
Decree No. 1866, it is incumbent on the Government to prove both
elements of the crime: (1) that the accused possessed the firearm

27
and (2) that he had not first obtained a license or permit from the
appropriate authorities. 34

As always, mere speculations and probabilities cannot substitute for

proof required to establish the guilt of an accused beyond
reasonable doubt . The rule is the same whether the offenses are
punishable under the Revised Penal Code which are mala in se or in
crimes which are malum prohibitum by virtue of special law. 35 We
find that such quantum of proof was not adequately presented in
this case.
IN VIEW WHEREOF, accused-appellant Rodolfo dela Rosa is
acquitted in Criminal Case No. L-3616. His immediate release from
the National Bilibid Prisons (NBP) is ordered, except if charged and
detained for other offenses.

SO ORDERED.

Regalado, Mendoza and Martinez, JJ., concur.

28