Provisional dismissal of criminal case

"xxx.


The issue is whether Section 8, Rule 117 bars the filing of the eleven (11) informations against the respondent Lacson involving the killing of some members of the Kuratong Baleleng gang. This rule which took effect on December 1, 2000 provides:

"SEC. 8. Provisional dismissal.- A case shall not be provisionally dismissed except with the express consent of the accused and with notice to the offended party.

The provisional dismissal of offenses punishable by imprisonment not exceeding six (6) years or a fine of any amount, or both, shall become permanent one (1) year after issuance of the order without the case having been revived. With respect to offenses punishable by imprisonment of more than six (6) years, their provisional dismissal shall become permanent two (2) years after issuance of the order without the case having been revived."

Like any other favorable procedural rule, this new rule can be given retroactive effect. However, this Court cannot rule on this jugular issue due to the lack of sufficient factual bases. Thus, there is need of proof of the following facts, viz: (1) whether the provisional dismissal of the cases had the express consent of the accused; (2) whether it was ordered by the court after notice to the offended party, (3) whether the 2-year period to revive has already lapsed, and (4) whether there is any justification for the filing of the cases beyond the 2-year period.

There is no uncertainty with respect to the fact that the provisional dismissal of the cases against respondent Lacson bears his express consent. It was respondent Lacson himself who moved to dismiss the subject cases for lack of probable cause before then Judge Agnir, hence, it is beyond argument that their dismissal bears his express consent.

The records of the case, however, do not reveal with equal clarity and conclusiveness whether notices to the offended parties were given before the cases against the respondent Lacson were dismissed by then Judge Agnir. It appears from the resolution of then Judge Agnir that the relatives of the victims who desisted did not appear during the hearing to affirm their affidavits. Their affidavits of desistance were only presented by Atty. Godwin Valdez who testified that he assisted the private complainants in preparing their affidavits and he signed them as a witness. It also appears that only seven (7) persons submitted their affidavits of desistance, namely:

a. Myrna Abalora, mother of the victims Sherwin Abalora and Rey Abalora

b. Carmelita Elcamel, wife of Wilbur Elcamel;

c. Leonora Amora, mother of victim Joel Amora;

d. Nenita Alap-ap, wife of victim Carlito Alap-ap;

e. Imelda Montero, wife of victim Manuel Montero;

f. Margarita Redillas, mother of victim Hilario Jevy Redillas; and

g. Rolando Siplon.

From the records of the case before us, it cannot be determined whether there were affidavits of desistance executed by the relatives of the three (3)38 other victims, namely: Meleubren Soronda, Pacifico Montero, Jr., and Alex Neri. The same records do not show whether they were notified of the hearing or had knowledge thereof. To be sure, it is not fair to expect the element of notice to be litigated before then Judge Agnir for Section 8, Rule 117 was yet inexistent at that time.

The fact of notice to the offended parties was not raised either in the petition for prohibition with application for temporary restraining order or writ of preliminary injunction filed by respondent Lacson in the RTC of Manila, presided by Judge Pasamba, to enjoin the prosecutors from reinvestigating the said cases against him. The only question raised in said petition is whether the reinvestigation will violate the right of respondent Lacson against double jeopardy. Thus, the issue of whether or not the reinvestigation is barred by Section 8, Rule 117 was not tackled by the litigants.

Nor was the fact of notice to the offended parties the subject of proof after the eleven (11) informations for murder against respondent Lacson and company were revived in the RTC of Quezon City presided by Judge Yadao. There was hardly any proceeding conducted in the case for respondent Lacson immediately filed a petition for certiorari in the appellate court challenging, among others, the authority of Judge Yadao to entertain the revived informations for multiple murder against him.

This is not to be wondered at. The applicability of Section 8, Rule 117 was never considered in the trial court. It was in the Court of Appeals where respondent Lacson raised for the first time the argument that Section 8, Rule 117 bars the revival of the multiple murder cases against him. But even then, the appellate court did not require the parties to elucidate the crucial issue of whether notices were given to the offended parties before Judge Agnir ordered the dismissal of the cases against respondent Lacson and company. To be sure, there is a statement in the Decision of the appellate court to the effect that "records show that the prosecution and the private offended parties were notified of the hearing x x x."39 It is doubtful whether this finding is supported by the records of the case. It appears to be contrary to Judge Agnir's finding that only seven (7) of the complainants submitted affidavits of desistance.

Indeed, the records of this case are inconclusive on the factual issue of whether the multiple murder cases against respondent Lacson are being revived within or beyond the 2-year bar. The reckoning date of the 2-year bar has to be first determined - - - whether it is from the date of the Order of then Judge Agnir dismissing the cases or from the dates the Order were received by the various offended parties or from the date of the effectivity of the new rule.

If the cases were revived only after the 2-year bar, the State must be given the opportunity to justify its failure to comply with said timeline. The new rule fixes a timeline to penalize the State for its inexcusable delay in prosecuting cases already filed in courts. It can therefore present compelling reasons to justify the revival of cases beyond the 2-year bar.

In light of the lack of or the conflicting evidence on the various requirements to determine the applicability of Section 8, Rule 117, this Court is not in a position to rule whether or not the re-filing of the cases for multiple murder against respondent Lacson should be enjoined. Fundamental fairness requires that both the prosecution and the respondent Lacson should be afforded the opportunity to be heard and to adduce evidence on the presence or absence of the predicate facts upon which the application of the new rule depends. They involve disputed facts and arguable questions of law. The reception of evidence on these various issues cannot be done in this Court but before the trial court.

IN VIEW OF THE FOREGOING, the case at bar is remanded to the RTC - Quezon City, Branch 81 so that the State prosecutors and the respondent Lacson can adduce evidence and be heard on whether the requirements of Section 8, Rule 117 have been complied with on the basis of the evidence of which the trial court should make a ruling on whether the Informations in Criminal Cases Nos. 01-101102 to 01-101112 should be dismissed or not. Pending the ruling, the trial court is restrained from issuing any warrant of arrest against the respondent Lacson. Melo and Carpio, JJ., take no part.

SO ORDERED.

Xxx."



G.R. No. 149453 May 28, 2002

PEOPLE OF THE PHILIPPINES, ET AL.,

vs.

PANFILO M. LACSON