G.R. No. 190889. January 10, 2011.

ELENITA C. FAJARDO, petitioner, vs. PEOPLE OF THE

PHILIPPINES, respondent.

Criminal Law; Illegal Possession of Firearms; Criminal

Procedure; Duplicity of Offenses; Pleadings, Practice and
Procedure; Illegal possession of two (2) pieces of short magazine of
M16 Armalite rifle, thirty-five (35) pieces of live M16 ammunition
5.56 caliber, and fourteen (14) pieces of live caliber .45
ammunition is punishable under paragraph 2 of the said section 1
of P.D. No. 1866, as amended by R.A. No. 8294, while   illegal
possession of the two (2) receivers of a .45 caliber pistol is
penalized under paragraph 1.—A reading of the information
clearly shows that possession of the enumerated articles
confiscated from Valerio and petitioner are punishable under
separate provisions of Section 1, P.D. No. 1866, as amended by
R.A. No. 8294. Illegal possession of two (2) pieces of short
magazine of M16 Armalite rifle, thirty-five (35) pieces of live M16
ammunition 5.56 caliber, and fourteen (14) pieces of live caliber
.45 ammunition is punishable under paragraph 2 of the said
section, viz.: The penalty of prision mayor in its minimum period
and a fine of Thirty thousand pesos (P30,000.00) shall be imposed
if the firearm is classified as high powered firearm which
includes those with bores bigger in diameter than .38
caliber and 9 millimeter such as caliber .40, 41, .44, .45 and
also lesser calibered firearms but considered powerful such as
caliber .357 and caliber .22 center-fire magnum and other
firearms with firing capability of full automatic and by burst of
two or three: Provided, however, That no other crime was
committed by the person arrested. On the other hand, illegal
possession of the two (2) receivers of a .45 caliber pistol, model no.
M1911A1 US, with SN 763025, and Model M1911A1 US, with a
defaced serial number, is penalized under paragraph 1, which
states: 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.—The penalty of prision correccional in
its maximum period and a fine of not less than Fifteen thousand
pesos (P15,000.00) shall be imposed upon any person who shall
unlawfully manufacture, deal in, acquire, dispose,
_______________

* SECOND DIVISION.

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Fajardo vs. People

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.
Same; Same; Same; Same; Same; By virtue of the changes
brought about by Republic Act No. 8294, an information for illegal
possession of firearm should now particularly refer to the
paragraph of Section 1 under which the seized firearm is
classified, and should there be numerous guns confiscated, each
must be sorted and then grouped according to the categories stated
in Section 1 of Republic Act No. 8294, amending Presidential
Decree No. 1866.—This is the necessary consequence of the
amendment introduced by R.A. No. 8294, which categorized the
kinds of firearms proscribed from being possessed without a
license, according to their firing power and caliber. R.A. No. 8294
likewise mandated different penalties for illegal possession of
firearm according to the above classification, unlike in the old
P.D. No. 1866 which set a standard penalty for the illegal
possession of any kind of firearm. Section 1 of the old law reads:
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 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 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 ours.) By virtue of such
changes, an information for illegal possession of firearm should
now particularly refer to the paragraph of Section 1 under which
the seized firearm is classified, and should there be numerous
guns confiscated, each must be sorted and then grouped according
to the categories stated in Section 1 of R.A. No. 8294, amending
P.D. No. 1866. It will no longer suffice to lump all of the seized
firearms in one information, and state Section 1, P.D. No. 1866 as
the violated provision, as in the instant case, because different
penalties are imposed by the law, depending on the caliber of the
weapon. To do so would result in duplicitous charges.

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196 SUPREME COURT REPORTS ANNOTATED

Fajardo vs. People

Same; Same; Searches and Seizures; Plain View Doctrine;

Requisites; Under the plain view doctrine, objects falling in the
“plain view” of an officer, who has a right to be in the position to
have that view, are subject to seizure and may be presented as
evidence.—Under the plain view doctrine, objects falling in the
“plain view” of an officer, who has a right to be in the position to
have that view, are subject to seizure and may be presented as
evidence. It applies when the following requisites concur: (a) the
law enforcement officer in search of the evidence has a prior
justification for an intrusion or is in a position from which he can
view a particular area; (b) the discovery of the evidence in plain
view is inadvertent; and (c) it is immediately apparent to the
officer that the item he observes may be evidence of a crime,
contraband, or otherwise subject to seizure. The law enforcement
officer must lawfully make an initial intrusion or properly be in a
position from which he can particularly view the area. In the
course of such lawful intrusion, he came inadvertently across a
piece of evidence incriminating the accused. The object must be
open to eye and hand, and its discovery inadvertent.
Same; Same; Elements; Conspiracy; Absent any evidence
pointing to an accused’s participation, knowledge or consent in the
actions of another accused, she cannot be held liable for illegal
possession of the receivers.—Illegal possession of firearms, or, in
this case, part of a firearm, is committed when the holder thereof:
(1) possesses a firearm or a part thereof (2) lacks the authority or
license to possess the firearm. We find that petitioner was neither
in physical nor constructive possession of the subject receivers.
The testimony of SPO2 Nava clearly bared that he only saw
Valerio on top of the house when the receivers were thrown. None
of the witnesses saw petitioner holding the receivers, before or
during their disposal. At the very least, petitioner’s possession of
the receivers was merely incidental because Valerio, the one in
actual physical possession, was seen at the rooftop of petitioner’s
house. Absent any evidence pointing to petitioner’s participation,
knowledge or consent in Valerio’s actions, she cannot be held
liable for illegal possession of the receivers.
Same; Same; Presumption of Innocence; Mere speculations
and probabilities cannot substitute for proof required to establish
the guilt of an accused beyond reasonable doubt, and the rule is
the same whether the offenses are punishable under the Revised
Penal Code,

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Fajardo vs. People

which are mala in se, or in crimes, which are malum prohibitum

by virtue of special law.—Petitioner’s apparent liability for illegal
possession of part of a firearm can only proceed from the
assumption that one of the thrown receivers matches the gun
seen tucked in the waistband of her shorts earlier that night.
Unfortunately, the prosecution failed to convert such assumption
into concrete evidence. 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. The quantum of proof required by law was not
adequately met in this case in so far as petitioner is concerned.
Same; Same; Illegal Possession of Part of a Firearm;
Elements.—In illegal possession of a firearm, two (2) things must
be shown to exist: (a) the existence of the subject firearm; and (b)
the fact that the accused who possessed the same does not have
the corresponding license for it. By analogy then, a successful
conviction for illegal possession of part of a firearm must yield
these requisites: (a) the existence of the part of the firearm; and
(b) the accused who possessed the same does not have the license
for the firearm to which the seized part/component corresponds.

PETITION for review on certiorari of a decision of the

Court of Appeals.
   The facts are stated in the opinion of the Court.
  Estrella S. Mijares-Briones for petitioner.
  Office of the Solicitor General for respondent.

NACHURA, J.:
At bar is a Petition for Review on Certiorari under Rule
45 of the Rules of Court, seeking the reversal of the
February 10,
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198 SUPREME COURT REPORTS ANNOTATED

Fajardo vs. People
2009 Decision1 of the Court of Appeals (CA), which
affirmed with modification the August 29, 2006 decision2 of
the Regional Trial Court (RTC), Branch 5, Kalibo, Aklan,
finding petitioner guilty of violating Presidential Decree
(P.D.) No. 1866, as amended.
The facts:
Petitioner, Elenita Fajardo, and one Zaldy Valerio
(Valerio) were charged with violation of P.D. No. 1866, as
amended, before the RTC, Branch 5, Kalibo, Aklan,
committed as follows:

“That on or about the 28th day of August, 2002, in the

morning, in Barangay Andagao, Municipality of Kalibo, Province
of Aklan, Republic of the Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, conspiring,
confederating and mutually helping one another, without
authority of law, permit or license, did then and there, knowingly,
willfully, unlawfully and feloniously have in their possession,
custody and control two (2) receivers of caliber .45 pistol,
[M]odel [No.] M1911A1 US with SN 763025 and Model [No.]
M1911A1 US with defaced serial number, two (2) pieces
short magazine of M16 Armalite rifle, thirty-five (35) pieces
live M16 ammunition 5.56 caliber and fourteen (14) pieces
live caliber .45 ammunition, which items were confiscated and
recovered from their possession during a search conducted by
members of the Provincial Intelligence Special Operation Group,
Aklan Police Provincial Office, Kalibo, Aklan, by virtue of Search
Warrant No. 01 (9) 03 issued by OIC Executive Judge Dean Telan
of the Regional Trial Court of Aklan.”3

_______________

1  Penned by Executive Justice Antonio L. Villamor, with Associate

Justices Stephen C. Cruz and Florito S. Macalino, concurring; Rollo, pp.
71-84.
2 Id., at pp. 32-69.
3 Information; CA Rollo, pp. 6-7. (Emphasis supplied.)

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When arraigned on March 25, 2004, both pleaded not

guilty to the offense charged.4 During pre-trial, they agreed
to the following stipulation of facts:
 1. The search warrant subject of this case exists;
2. Accused Elenita Fajardo is the same person subject of the search
warrant in this case who is a resident of Sampaguita Road, Park
Homes, Andagao, Kalibo, Aklan;
3. Accused Zaldy Valerio was in the house of Elenita Fajardo in the
evening of August 27, 2002 but does not live therein;
4. Both accused were not duly licensed firearm holders;
5. The search warrant was served in the house of accused Elenita
Fajardo in the morning of August 28, 2002; and
6. The accused Elenita Fajardo and Valerio were not arrested
immediately upon the arrival of the military personnel despite the
fact that the latter allegedly saw them in possession of a firearm
in the evening of August 27, 2002.5

As culled from the similar factual findings of the RTC

and the CA,6 these are the chain of events that led to the
filing of the information:
In the evening of August 27, 2002, members of the
Provincial Intelligence Special Operations Group (PISOG)
were instructed by Provincial Director Police
Superintendent Edgardo Mendoza (P/Supt. Mendoza) to
respond to the complaint of concerned citizens residing on
Ilang-Ilang and Sampaguita Roads, Park Homes III
Subdivision, Barangay Andagao, Kalibo, Aklan, that armed
men drinking liquor at the residence of petitioner were
indiscriminately firing guns.
Along with the members of the Aklan Police Provincial
Office, the elements of the PISOG proceeded to the area.
Upon

_______________

4 Supra note 2, at p. 33.

5 Id.
6 Supra notes 1 and 2.

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Fajardo vs. People

arrival thereat, they noticed that several persons

scampered and ran in different directions. The responding
team saw Valerio holding two .45 caliber pistols. He fired
shots at the policemen before entering the house of
petitioner.
Petitioner was seen tucking a .45 caliber handgun
between her waist and the waistband of her shorts, after
which, she entered the house and locked the main door.
To prevent any violent commotion, the policemen
desisted from entering petitioner’s house but, in order to
deter Valerio from evading apprehension, they cordoned
the perimeter of the house as they waited for further
instructions from P/Supt. Mendoza. A few minutes later,
petitioner went out of the house and negotiated for the
pull-out of the police troops. No agreement materialized.
At around 2:00 a.m. and 4:00 a.m. of August 28, 2002,
Senior Police Officer 2 Clemencio Nava (SPO2 Nava), who
was posted at the back portion of the house, saw Valerio
emerge twice on top of the house and throw something. The
discarded objects landed near the wall of petitioner’s house
and inside the compound of a neighboring residence. SPO2
Nava, together with SPO1 Teodoro Neron and Jerome T.
Vega (Vega), radio announcer/reporter of RMN DYKR, as
witness, recovered the discarded objects, which turned out
to be two (2) receivers of .45 caliber pistol, model no.
M1911A1 US, with serial number (SN) 763025, and model
no. M1911A1 US, with a defaced serial number. The
recovered items were then surrendered to SPO1 Nathaniel
A. Tan (SPO1 Tan), Group Investigator, who utilized them
in applying for and obtaining a search warrant.
The warrant was served on petitioner at 9:30 a.m.
Together with a barangay captain, barangay kagawad, and
members of the media, as witnesses, the police team
proceeded to search petitioner’s house. The team found and
was able to confiscate the following:
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1. Two (2) pieces of Short Magazine of M16 Armalite Rifle;

2. Thirty five (35) pieces of live M16 ammos 5.56 Caliber; and
3. Fourteen (14) pieces of live ammos of Caliber 45 pistol.

Since petitioner and Valerio failed to present any

documents showing their authority to possess the
confiscated firearms and the two recovered receivers, a
criminal information for violation of P.D. No. 1866, as
amended by Republic Act (R.A.) No. 8294, was filed against
them.
For their exoneration, petitioner and Valerio argued
that the issuance of the search warrant was defective
because the allegation contained in the application filed
and signed by SPO1 Tan was not based on his personal
knowledge. They quoted this pertinent portion of the
application:

“That this application was founded on confidential information

received by the Provincial Director, Police Supt. Edgardo
Mendoza.”7

They further asserted that the execution of the search

warrant was infirm since petitioner, who was inside the
house at the time of the search, was not asked to
accompany the policemen as they explored the place, but
was instead ordered to remain in the living room (sala).
Petitioner disowned the confiscated items. She refused
to sign the inventory/receipt prepared by the raiding team,
because the items allegedly belonged to her brother, Benito
Fajardo, a staff sergeant of the Philippine Army.
Petitioner denied that she had a .45 caliber pistol tucked
in her waistband when the raiding team arrived. She
averred that such situation was implausible because she
was wearing garterized shorts and a spaghetti-strapped
hanging blouse.8

_______________

7 CA Rollo, pp. 60-90; see also Exhibits 2 & 2a, records, Vol. I, p. 37.
8 Supra note 2, at pp. 49-63.

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202 SUPREME COURT REPORTS ANNOTATED

Fajardo vs. People

Ruling of the RTC

The RTC rejected the defenses advanced by accused,
holding that the same were already denied in the Orders
dated December 31, 2002 and April 20, 2005, respectively
denying the Motion to Quash Search Warrant and
Demurrer to Evidence. The said Orders were not appealed
and have thus attained finality. The RTC also ruled that
petitioner and Valerio were estopped from assailing the
legality of their arrest since they participated in the trial
by presenting evidence for their defense. Likewise, by
applying for bail, they have effectively waived such
irregularities and defects.
In finding the accused liable for illegal possession of
firearms, the RTC explained:

“Zaldy Valerio, the bodyguard of Elenita Fajardo, is a former

soldier, having served with the Philippine Army prior to his
separation from his service for going on absence without leave
(AWOL). With his military background, it is safe to conclude that
Zaldy Valerio is familiar with and knowledgeable about different
types of firearms and ammunitions. As a former soldier,
undoubtedly, he can assemble and disassemble firearms.
It must not be de-emphasize[d] that the residence of Elenita
Fajardo is definitely not an armory or arsenal which are the usual
depositories for firearms, explosives and ammunition. Granting
arguendo that those firearms and ammunition were left behind by
Benito Fajardo, a member of the Philippine army, the fact
remains that it is a government property. If it is so, the residence
of Elenita Fajardo is not the proper place to store those items. The
logical explanation is that those items are stolen property.
x x x x
The rule is that ownership is not an essential element of illegal
possession of firearms and ammunition. What the law requires is
merely possession which includes not only actual physical
possession but also constructive possession or the subjection of
the thing to one’s control and management. This has to be so if
the manifest intent of the law is to be effective. The same evils,
the same perils to public security, which the law penalizes exist
whether the unli-

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Fajardo vs. People

censed holder of a prohibited weapon be its owner or a borrower.

To accomplish the object of this law[,] the proprietary concept of
the possession can have no bearing whatsoever.
x x x x
x x x. [I]n 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.
x x x x
To convict an accused for illegal possession of firearms and
explosive under P.D. 1866, as amended, two (2) essential elements
must be indubitably established, viz.: (a) the existence of the
subject firearm ammunition or explosive which may be proved by
the presentation of the subject firearm or explosive or by the
testimony of witnesses who saw accused in possession of the
same, and (b) the negative fact that the accused has no license or
permit to own or possess the firearm, ammunition or explosive
which fact may be established by the testimony or certification of
a representative of the PNP Firearms and Explosives Unit that
the accused has no license or permit to possess the subject firearm
or explosive (Exhibit G).
The judicial admission of the accused that they do not have
permit or license on the two (2) receivers of caliber .45 pistol,
model M1911A1 US with SN 763025 and model M1911A1 of M16
Armalite rifle, thirty-five (35) pieces live M16 ammunition, 5.56
caliber and fourteen (14) pieces live caliber .45 ammunition
confiscated and recovered from their possession during the search
conducted by members of the PISOG, Aklan Police Provincial
Office by virtue of Search Warrant No. 01 (9) 03 fall under Section
4 of Rule 129 of the Revised Rules of Court.”9

Consequently, petitioner and Valerio were convicted of

illegal possession of firearms and explosives, punishable
under paragraph 2, Section 1 of P.D. No. 1866, as amended
by R.A. No. 8294, which provides:

_______________

9 Id., at pp. 64-68.

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204 SUPREME COURT REPORTS ANNOTATED

Fajardo vs. People

“The penalty of prision mayor in its minimum period and a fine

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

Both were sentenced to suffer the penalty of

imprisonment of six (6) years and one (1) day to twelve (12)
years of prision mayor, and to pay a fine of P30,000.00.
On September 1, 2006, only petitioner filed a Motion for
Reconsideration, which was denied in an Order dated
October 25, 2006. Petitioner then filed a Notice of Appeal
with the CA.
Ruling of the CA
The CA concurred with the factual findings of the RTC,
but disagreed with its conclusions of law, and held that the
search warrant was void based on the following
observations:
 “[A]t the time of applying for a search warrant, SPO1
Nathaniel A. Tan did not have personal knowledge of the fact that
appellants had no license to possess firearms as required by law.
For one, he failed to make a categorical statement on that point
during the application. Also, he failed to attach to the application
a certification to that effect from the Firearms and Explosives
Office of the Philippine National Police. x x x, this certification is
the best evidence obtainable to prove that appellant indeed has no
license or permit to possess a firearm. There was also no
explanation given why said certification was not presented, or
even deemed no longer necessary, during the application for the
warrant. Such vital evidence was simply ignored.”10

_______________

10 Supra note 1, at pp. 78-79.

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Resultantly, all firearms and explosives seized inside

petitioner’s residence were declared inadmissible in
evidence. However, the 2 receivers recovered by the
policemen outside the house of petitioner before the
warrant was served were admitted as evidence, pursuant
to the plain view doctrine.
Accordingly, petitioner and Valerio were convicted of
illegal possession of a part of a firearm, punishable under
paragraph 1, Section 1 of P.D. No. 1866, as amended. They
were sentenced to an indeterminate penalty of three (3)
years, six (6) months, and twenty-one (21) days to five (5)
years, four (4) months, and twenty (20) days of prision
correccional, and ordered to pay a P20,000.00 fine.
Petitioner moved for reconsideration,11 but the motion
was denied in the CA Resolution dated December 3, 2009.12
Hence, the present recourse.
At the onset, it must be emphasized that the
information filed against petitioner and Valerio charged
duplicitous offenses contrary to Section 13 of Rule 110 of
the Rules of Criminal Procedure, viz.:

“Sec. 13. Duplicity of offense.—A complaint or information

must charge but one offense, except only in those cases in which
existing laws prescribe a single punishment for various offenses.”
 A reading of the information clearly shows that
possession of the enumerated articles confiscated from
Valerio and petitioner are punishable under separate
provisions of Section 1, P.D. No. 1866, as amended by R.A.
No. 8294.13 Illegal possession of two (2) pieces of short
magazine of M16 Armalite rifle, thirty-five (35) pieces of
live M16 ammunition 5.56 caliber, and fourteen (14) pieces
of live caliber .45 ammunition is punishable under
paragraph 2 of the said section, viz.:

_______________

11 Rollo, pp. 85-90.

12 Id., at pp. 92-93.
13 Approved on June 6, 1997.

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206 SUPREME COURT REPORTS ANNOTATED

Fajardo vs. People

“The penalty of prision mayor in its minimum period and a fine

of Thirty thousand pesos (P30,000.00) shall be imposed if the
firearm is classified as high powered firearm which includes
those with bores bigger in diameter than .38 caliber and 9
millimeter such as caliber .40, 41, .44, .45 and also lesser
calibered firearms but considered powerful such as caliber .357
and caliber .22 center-fire magnum and other firearms with firing
capability of full automatic and by burst of two or three: Provided,
however, That no other crime was committed by the person
arrested.”14

On the other hand, illegal possession of the two (2)

receivers of a .45 caliber pistol, model no. M1911A1 US,
with SN 763025, and Model M1911A1 US, with a defaced
serial number, is penalized under paragraph 1, which
states:

“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.
—The penalty of prision correccional in its maximum period and a
fine of not less than Fifteen thousand pesos (P15,000.00) shall be
imposed upon any person who shall unlawfully manufacture, deal
in, acquire, dispose, or possess any low powered firearm, such as
rimfire handgun, .380 or .32 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.”15

This is the necessary consequence of the amendment

introduced by R.A. No. 8294, which categorized the kinds of
firearms proscribed from being possessed without a license,
according to their firing power and caliber. R.A. No. 8294
likewise mandated different penalties for illegal possession
of firearm according to the above classification, unlike in
the old P.D. No. 1866 which set a standard penalty for the
illegal possession of any kind of firearm. Section 1 of the
old law reads:

_______________

14 Emphasis supplied.
15 Emphasis supplied.

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Fajardo vs. People

“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 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 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 ours.)

By virtue of such changes, an information for illegal

possession of firearm should now particularly refer to the
paragraph of Section 1 under which the seized firearm is
classified, and should there be numerous guns confiscated,
each must be sorted and then grouped according to the
categories stated in Section 1 of R.A. No. 8294, amending
P.D. No. 1866. It will no longer suffice to lump all of the
seized firearms in one information, and state Section 1,
P.D. No. 1866 as the violated provision, as in the instant
case,16 because different penalties are imposed by the law,
depending on the caliber of the weapon. To do so would
result in duplicitous charges.
Ordinarily, an information that charges multiple
offenses merits a quashal, but petitioner and Valerio failed
to raise this issue during arraignment. Their failure
constitutes a waiver, and they could be convicted of as
many offenses as there were charged in the information.17
This accords propriety to the diverse convictions handed
down by the courts a quo.

_______________

16  In fact, the signing prosecutor did not even cite Section 1; see
Information, supra note 3.
17 The purpose of the rule against duplicity of offense, embodied in Sec.
13, Rule 110 of the Rules of Court, is to give the defendant the necessary
knowledge of the charge so that he may not be confused in his defense. (F.
Regalado, Remedial Law Compendium, Volume II [8th ed., 2000], citing
People v. Ferrer, 101 Phil. 234, 270 [1957]).

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Fajardo vs. People

Further, the charge of illegal possession of firearms and

ammunition under paragraph 2, Section 1 of P.D. No. 1866,
as amended by R.A. No. 8294, including the validity of the
search warrant that led to their confiscation, is now beyond
the province of our review since, by virtue of the CA’s
Decision, petitioner and Valerio have been effectively
acquitted from the said charges. The present review is
consequently only with regard to the conviction for illegal
possession of a part of a firearm.
The Issues
Petitioner insists on an acquittal and avers that the
discovery of the two (2) receivers does not come within the
purview of the plain view doctrine. She argues that no
valid intrusion was attendant and that no evidence was
adduced to prove that she was with Valerio when he threw
the receivers. Likewise absent is a positive showing that
any of the two receivers recovered by the policemen
matched the .45 caliber pistol allegedly seen tucked in the
waistband of her shorts when the police elements arrived.
Neither is there any proof that petitioner had knowledge of
or consented to the alleged throwing of the receivers.
Our Ruling
We find merit in the petition.
First, we rule on the admissibility of the receivers. We
hold that the receivers were seized in plain view, hence,
admissible.
No less than our Constitution recognizes the right of the
people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures. This
right is encapsulated in Article III, Section 2, of the
Constitution, which states:

“Sec. 2. The right of the people to be secure in their persons,

houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be
inviolable,

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Fajardo vs. People

and no search warrant or warrant of arrest shall issue except

upon probable cause to be determined personally by the judge
after examination under oath or affirmation of the complainant
and the witnesses he may produce, and particularly describing
the place to be searched and the persons or things to be seized.”

Complementing this provision is the exclusionary rule

embodied in Section 3(2) of the same article—

“(2) Any evidence obtained in violation of this or the preceding

section shall be inadmissible for any purpose in any proceeding.”

There are, however, several well-recognized exceptions

to the foregoing rule. Thus, evidence obtained through a
warrantless search and seizure may be admissible under
any of the following circumstances: (1) search incident to a
lawful arrest; (2) search of a moving motor vehicle; (3)
search in violation of custom laws; (4) seizure of evidence in
plain view; and (5) when the accused himself waives his
right against unreasonable searches and seizures.18
Under the plain view doctrine, objects falling in the
“plain view” of an officer, who has a right to be in the
position to have that view, are subject to seizure and may
be presented as evidence.19 It applies when the following
requisites concur: (a) the law enforcement officer in search
of the evidence has a prior justification for an intrusion or
is in a position from which he can view a particular area;
(b) the discovery of the evidence in plain view is
inadvertent; and (c) it is immediately apparent to the
officer that the item he observes may be evidence of a
crime, contraband, or otherwise subject to seizure. The law
enforcement officer must lawfully make an initial

_______________
 18  People v. Go, 457 Phil. 885, 926; 411 SCRA 81, 113 (2003), citing
People v. Doria, G.R. No. 125299, January 22, 1999, 301 SCRA 668, 704-
705.
19  People v. Go, supra, at p. 928; p. 115, citing People v. Musa, 217
SCRA 597, 610 (1993) and Harris v. United States, 390 U.S. 192, 72 L. ed.
231 (1927).

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210 SUPREME COURT REPORTS ANNOTATED

Fajardo vs. People

intrusion or properly be in a position from which he can

particularly view the area. In the course of such lawful
intrusion, he came inadvertently across a piece of evidence
incriminating the accused. The object must be open to eye
and hand, and its discovery inadvertent.20
Tested against these standards, we find that the seizure
of the two receivers of the .45 caliber pistol outside
petitioner’s house falls within the purview of the plain view
doctrine.
First, the presence of SPO2 Nava at the back of the
house and of the other law enforcers around the premises
was justified by the fact that petitioner and Valerio were
earlier seen respectively holding .45 caliber pistols before
they ran inside the structure and sought refuge. The
attendant circumstances and the evasive actions of
petitioner and Valerio when the law enforcers arrived
engendered a reasonable ground for the latter to believe
that a crime was being committed. There was thus
sufficient probable cause for the policemen to cordon off the
house as they waited for daybreak to apply for a search
warrant.
Secondly, from where he was situated, SPO2 Nava
clearly saw, on two different instances, Valerio emerge on
top of the subject dwelling and throw suspicious objects.
Lastly, considering the earlier sighting of Valerio holding a
pistol, SPO2 Nava had reasonable ground to believe that
the things thrown might be contraband items, or evidence
of the offense they were then suspected of committing.
Indeed, when subsequently recovered, they turned out to be
two (2) receivers of .45 caliber pistol.
The pertinent portions of SPO2 Nava’s testimony are
elucidating:
Q When you arrived in that place, you saw policemen?
A Yes, sir.
 _______________

20 People v. Doria, supra note 18, at p. 711.

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Fajardo vs. People

Q What were they doing?

A They were cordoning the house.
Q You said that you asked your assistant team leader Deluso about
that incident. What did he tell you?
A Deluso told me that a person ran inside the house carrying with him
a gun.
Q And this house you are referring to is the house which you
mentioned is the police officers were surrounding?
A Yes, sir.
Q Now, how long did you stay in that place, Mr. Witness?
A I stayed there when I arrived at past 10:00 o’clock up to 12:00 o’clock
the following day.
Q At about 2:00 o’clock in the early morning of August 28, 2002, can
you recall where were you?
A Yes, sir.
Q Where were you?
A I was at the back of the house that is being cordoned by the police.
Q While you were at the back of this house, do you recall any unusual
incident?
A Yes, sir.
Q Can you tell the Honorable Court what was that incident?
A Yes, sir. A person went out at the top of the house and threw
something.
Q And did you see the person who threw something out of this house?
A Yes, sir.
x x x x
Q Can you tell the Honorable Court who was that person who threw
that something outside the house?
A It was Zaldy Valerio.
COURT: (to witness)
Q Before the incident, you know this person Zaldy Valerio?
A Yes, sir.

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212 SUPREME COURT REPORTS ANNOTATED

Fajardo vs. People

Q Why do you know him?

A Because we were formerly members of the Armed Forces of the
Philippines.
x x x x
PROS. PERALTA:
Q When you saw something thrown out at the top of the house, did you
do something if any?
A I shouted to seek cover.
x x x x
Q So, what else did you do if any after you shouted, “take cover?”
A I took hold of a flashlight after five minutes and focused the beam of
the flashlight on the place where something was thrown.
Q What did you see if any?
A I saw there the lower [part] of the receiver of cal. 45.
x x x x
Q Mr. Witness, at around 4:00 o’clock that early morning of August 28,
2002, do you recall another unusual incident?
A Yes, sir.
Q And can you tell us what was that incident?
A I saw a person throwing something there and the one that was
thrown fell on top of the roof of another house.
Q And you saw that person who again threw something from the
rooftop of the house?
A Yes, sir.
Q Did you recognize him?
A Yes, sir.
Q Who was that person?
A Zaldy Valerio again.
x x x x
Q Where were you when you saw this Zaldy Valerio thr[o]w something
out of the house?
A I was on the road in front of the house.

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Fajardo vs. People

Q Where was Zaldy Valerio when you saw him thr[o]w something out
of the house?
A He was on top of the house.
x x x x
Q Later on, were you able to know what was that something thrown
out?
A Yes, sir.
Q What was that?
A Another lower receiver of a cal. 45.
x x x x
Q And what did he tell you?
A It [was] on the wall of another house and it [could] be seen right
away.
x x x x
 Q What did you do if any?
A We waited for the owner of the house to wake up.
x x x x
QWho opened the fence for you?
A It was a lady who is the owner of the house.
Q When you entered the premises of the house of the lady, what did
you find?
A We saw the lower receiver of this .45 cal. (sic)21

The ensuing recovery of the receivers may have been

deliberate; nonetheless, their initial discovery was
indubitably inadvertent. It is not crucial that at initial
sighting the seized contraband be identified and known to
be so. The law merely requires that the law enforcer
observes that the seized item may be evidence of a crime,
contraband, or otherwise subject to seizure.
Hence, as correctly declared by the CA, the two receivers
were admissible as evidence. The liability for their
possession, however, should fall only on Valerio and not on
petitioner.

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21 TSN, August 25, 2004, pp. 5-14.

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214 SUPREME COURT REPORTS ANNOTATED

Fajardo vs. People

The foregoing disquisition notwithstanding, we find that

petitioner is not liable for illegal possession of part of a
firearm.
In dissecting how and when liability for illegal
possession of firearms attaches, the following disquisitions
in People v. De Gracia22 are instructive:

“The rule is that ownership is not an essential element of

illegal possession of firearms and ammunition. What the law
requires is merely possession which includes not only actual
physical possession but also constructive possession or the
subjection of the thing to one’s control and management. This has
to be so if the manifest intent of the law is to be effective. The
same evils, the same perils to public security, which the law
penalizes exist whether the unlicensed holder of a prohibited
weapon be its owner or a borrower. To accomplish the object of
this law the proprietary concept of the possession can have no
bearing whatsoever.
   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 since the offense of
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 the 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 did intend 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
posses-

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22 G.R. Nos. 102009-10, July 6, 1994, 233 SCRA 716.

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Fajardo vs. People

sion 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 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.
Concomitantly, a temporary, incidental, casual, or harmless
possession or control of a firearm cannot be considered a violation
of a statute prohibiting the possession of this kind of weapon,
such as Presidential Decree No. 1866. Thus, although there is
physical or constructive possession, for as long as the animus
possidendi is absent, there is no offense committed.”23
 Certainly, illegal possession of firearms, or, in this case,
part of a firearm, is committed when the holder thereof:
(1) possesses a firearm or a part thereof
(2) lacks the authority or license to possess the
firearm.24
We find that petitioner was neither in physical nor
constructive possession of the subject receivers. The
testimony of SPO2 Nava clearly bared that he only saw
Valerio on top of the house when the receivers were
thrown. None of the witnesses saw petitioner holding the
receivers, before or during their disposal.
At the very least, petitioner’s possession of the receivers
was merely incidental because Valerio, the one in actual
physical possession, was seen at the rooftop of petitioner’s

_______________

23 Id., at pp. 725-727. (Citations omitted.)

24  See People v. Dela Rosa, G.R. No. 84857, January 16, 1998, 284
SCRA 158, 167, citing People v. Caling, G.R. No. 94784, May 8, 1992, 208
SCRA 827.

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216 SUPREME COURT REPORTS ANNOTATED

Fajardo vs. People

house. Absent any evidence pointing to petitioner’s

participation, knowledge or consent in Valerio’s actions,
she cannot be held liable for illegal possession of the
receivers.
Petitioner’s apparent liability for illegal possession of
part of a firearm can only proceed from the assumption
that one of the thrown receivers matches the gun seen
tucked in the waistband of her shorts earlier that night.
Unfortunately, the prosecution failed to convert such
assumption into concrete evidence.
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.25 The quantum of proof
required by law was not adequately met in this case in so
far as petitioner is concerned.
The gun allegedly seen tucked in petitioner’s waistband
was not identified with sufficient particularity; as such, it
is impossible to match the same with any of the seized
receivers. Moreover, SPO1 Tan categorically stated that he
saw Valerio holding two guns when he and the rest of the
PISOG arrived in petitioner’s house. It is not unlikely then
that the receivers later on discarded were components of
the two (2) pistols seen with Valerio.
These findings also debunk the allegation in the
information that petitioner conspired with Valerio in
committing illegal possession of part of a firearm. There is
no evidence indubitably proving that petitioner
participated in the decision to commit the criminal act
committed by Valerio.
Hence, this Court is constrained to acquit petitioner on
the ground of reasonable doubt. The constitutional
presumption

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25 People v. Dela Rosa, id., at p. 172.

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Fajardo vs. People

of innocence in her favor was not adequately overcome

by the evidence adduced by the prosecution.
The CA correctly convicted Valerio with illegal possession
of part of a firearm.
In illegal possession of a firearm, two (2) things must be
shown to exist: (a) the existence of the subject firearm; and
(b) the fact that the accused who possessed the same does
not have the corresponding license for it.26
By analogy then, a successful conviction for illegal
possession of part of a firearm must yield these requisites:
(a) the existence of the part of the firearm; and
(b) the accused who possessed the same does not have
the license for the firearm to which the seized
part/component corresponds.
In the instant case, the prosecution proved beyond
reasonable doubt the elements of the crime. The subject
receivers—one with the markings “United States Property”
and the other bearing Serial No. 763025—were duly
presented to the court as Exhibits E and E-1, respectively.
They were also identified by SPO2 Nava as the firearm
parts he retrieved after Valerio discarded them.27 His
testimony was corroborated by DYKR

_______________
 26  See Teofilo Evangelista v. The People of the Philippines, G.R. No.
163267, May 5, 2010, 620 SCRA 134; People v. Eling, G.R. No. 178546,
April 30, 2008, 553 SCRA 724, 738; Advincula v. Court of Appeals, 397
Phil. 641, 649; 343 SCRA 583, 588-589 (2000).
27 Q Now, when you saw this lower receiver of the cal. 45, what did
you do if any?
 A I called some uniformed men and asked them to guard
   the place.
 Q You did not right away pick it up?
 A No, sir, because we waited for some media persons for
   them to see what was thrown.
 Q Were (sic) the media people eventually arrived?
 A Yes, sir.
 Q Were they able to see this lower receiver of cal. 45?
 A Yes, sir.

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218 SUPREME COURT REPORTS ANNOTATED

Fajardo vs. People

radio announcer Vega, who witnessed the recovery of the

receivers.28

_______________

 x x x x
 Q Were you the one who actually picked up this lower
   receiver of the cal. 45?
 A Yes, sir, I picked it with the help of a wire.
 Q If that lower receiver of cal. 45 including the wire in
   picking it up is shown to you, will you be able to
   identify them?
 A Yes, sir.
 Q I am showing to you a receiver of the cal. 45 already
   marked as Exhibit E, please go over the same and tell
   if this is the same lower receiver of cal. 45 including
   the wire?
 A Yes, sir.
 x x x x
 Q You said that Zaldy Valerio threw something out of the
    house towards the direction of another house. Can you
    remember having said so?
 A Yes, sir.
 x x x x
 Q And you cannot enter this if the owner of the house will
   not open the gate for you?
 A Yes, sir.
  Q And so, were you able to enter this house?
 A They let us in because they opened the fence.
 x x x x
 Q When you entered the premises of the house of the lady,
   what did you find?
 A We saw the lower receiver of this .45 cal.
 Q If that lower receiver of cal. 45 will be shown to you,
   will you be able to identify the same?
 A Yes, sir.
 Q I am showing to you this lower receiver of the cal. 45
    already marked as Exhibit E-1, is that the same lower
    receiver of cal. 45 which you saw in the early morning
    of August 28, 2002?
 A Yes, sir.
 Q What did you do with that lower receiver?
 A I picked it up and when I have picked it up, turned it
    over to our investigator.
 Q Can you tell us how did you pick up that lower
    receiver?
 A Through the use of a wire.
 Q Was there any media people present when you picked
    up this lower receiver of the cal. 45?
 A Many. (TSN, August 25, 2004, pp. 8-14)
28 TSN, August 18, 2004, pp. 21-30.

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Fajardo vs. People

   Anent the lack of authority, SPO1 Tan testified that,

upon verification, it was ascertained that Valerio is not a
duly licensed/registered firearm holder of any type, kind, or
caliber of firearms.29 To substantiate his statement, he
submitted a certification30 to that effect and identified the
same in court.31 The testimony of SPO1 Tan, or the
certification, would suffice to prove beyond reasonable
doubt the second element.32
WHEREFORE, premises considered, the February 10,
2009 Decision of the Court of Appeals is hereby
REVERSED with respect to petitioner Elenita Fajardo y
Castro, who is hereby ACQUITTED on the ground that her
guilt was not proved beyond reasonable doubt.
SO ORDERED.

Carpio (Chairperson), Peralta, Abad and Mendoza, JJ.,

concur.
 Judgment reversed with respect to Elenita Fajardo y
Castro who is acquitted.

Note.—One in possession of an unlicensed firearm can

be convicted of simple illegal possession of firearms,
provided that no other crime was committed by him, but if
another crime was committed, he cannot be convicted of
simple illegal possession of firearms but of the other crime.
(Evangelista vs. Sistoza, 362 SCRA 563 [2001])
With the passage of R.A. No. 8294 on 6 June 1997, the
use of an unlicensed firearm in murder or homicide is not a
separate crime, but merely a special aggravating
circumstance. (People vs. Abriol, 367 SCRA 327 [2001])
——o0o—— 

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29 TSN, August 4, 2004, pp. 16-17.

30 Exhibit G; records, Volume I, p. 8.
31 TSN, August 4, 2004, p. 16.
32 Valeroso v. People, G.R. No. 164815, February 22, 2008, 546 SCRA
450, 468-469.

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