THIRD DIVISION
[G.R. No. 197542. October 4, 2017.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs. KARNO SARIFF y SULAYMAN, ET AL., accused, MADS SABAN y DALINDING, accused-appellant.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Third Division, issued a Resolution dated October 4, 2017, which reads as follows:
"G.R. No. 197542 (PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. KARNO SARIFF y SULAYMAN, ET AL., Accused; MADS SABAN y DALINDING, Accused-Appellant.) — This appeal is taken from the decision promulgated on November 25, 2009 in CA-G.R. CR-H.C. No. 02602, 1 whereby the Court of Appeals (CA) affirmed the decision rendered on November 10, 2006 by the Regional Trial Court (RTC) in Manila in Criminal Case Nos. 04-224762 and 04-225940 finding Karno Sariff y Sulayman (Sariff) in conspiracy with Mads Saban y Dalinding (Saban) guilty of a violation of Section 26 in relation to Section 5, Article II of Republic Act No. 9165 (Comprehensive Dangerous Drugs Act of 2002), and accordingly penalizing them. 2
Antecedents
The CA summarized the factual antecedents as follows:
Accused are charged of violation of Sec. 5, in relation to Sec. 26, Art. II of Republic Act No. 9165, under the following 2 informations, to wit:
"That on or about March 4, 2004, in the City of Manila, Philippines, the said accused, conspiring and confederating with two others whose true names, real identities, and present whereabouts are still unknown and helping one another, not being authorized by law to sell, trade, deliver or give away to another any dangerous drug, did then and there willfully, unlawfully and knowingly sell, offer for sale one (1) self sealing transparent plastic bag with markings 'Exhibit A KSS 04 March 04' marked as A-1 containing NINETY EIGHT POINT TWENTY FOUR (98.24) GRAMS of white crystalline substance containing methylamphetamine hydrochloride known as "SHABU", which is a dangerous drug.
Contrary to law."
"That on or about March 4, 2004, in the City of Manila, Philippines the said accused, conspiring and confederating with KARNO SARIFF Y SULAYMAN, who was also charged of Viol. of Sec. 5, RA 9165 in RTC, Manila, under Criminal Case No. 04-224762 and mutually helping each other, not being authorized by law to sell, trade, deliver or give away to another any dangerous drug, did then and there willfully, unlawfully and knowingly sell, offer for sale one (1) self sealing transparent plastic bag with marking "Exhibit A KSS 04 March 04" marked as A-1 containing NINETY EIGHT POINT TWENTY FOUR (98.24) GRAMS of white crystalline substance known as "shabu", containing methylamphetamine hydrochloride, which is a dangerous drug.
Contrary to law."
When arraigned both accused duly assisted by their respected counsels de parte pleaded not guilty.
During the ocular inspection conducted on September 2, 2004, the case against Karno Sariff which came from Branch 13 upon motion of the trial prosecutor was consolidated with the accused Mads Saban.
SPO1 Tomas C. Calicdan declared that he is assigned at the Special Enforcement Group, Metro Manila Regional Office, PDEA; that on March 4, 2004 at around 9:00 a.m. a CI informed their Team Leader, P/SI Mannan Muarip regarding the alleged selling of shabu by a certain KARNO; that after one hour of interview, Muarip reported the matter to P/Chief Insp. Romualdo P. Iglesias; that the latter instructed Muarip to conduct surveillance; that their standing team composed of 8 members was alerted for possible operation and he was designated as poseur-buyer with PO3 Jonathan Cruz and Elleonito Apduhan as back up; that at around 5:00 p.m., they went home since the CI did not call up; that on March 3, 2004 at around 1:00 p.m. Muarip conducted a briefing and was given two P500.00 bills which he marked with his initials 'TCC' at the upper part of the numeral P500.00; that he used the 2 genuine bills as topping to the boodle money to make it appear as P200,000.00 the purchase price for 100 grams of shabu; that during the briefing conducted by their team leader which lasted for around 30 minutes, it was decided that, since they will be using two cars, the pre-arranged signal was the "signal light"; that at around 4:30 p.m. the CI called up and told the team to proceed to the target area at the Jollibee Food Center, San Andres, Manila; that using two cars they arrived at the target area at around 7:30 p.m. that he entered the Jollibee Food Center, seated (sic) and ordered food; that at around 8:00 p.m. the CI together with KARNO joined him in his table; that after the usual introduction, he greeted KARNO 'SALAMALAIKUM"; that KARNO told him that 5 grams of shabu is worth P10,000.00; that he ordered 100 grams and he has ready cash; that since KARNO did not bring any stock it was agreed that CI will just call KARNO; and that he gave KARNO a ride and he alighted somewhere near the stop light along Osmeña Highway; and that at around 9:00 p.m., he reported the incident to his Chief.
He went on to testify that on March 4, 2004 at around 8:00 a.m., upon receipt of the waited call from the CI that the stock was ready at the same meeting place, their team proceeded and arrived at the Jollibee at around 9:30 a.m.; that he and the CI seated themselves and at around 10:00 a.m. Karno arrived; that upon request he showed the buy-bust money to Karno who wanted to count them but he refused without seeing the shabu; that Karno told them that for security reason, he left it in his house; that while eating it was agreed that he and the CI would go with Karno to get the shabu; that at around 12:00 p.m. they proceeded to Alejo Aquino Street where they parked infront of a white gate and Karno entered the house thereat; that after 30 minutes a man came out from the said house informing them that the shabu is still being weighed and arranged and he positioned himself near their vehicle observing the area; that a few minutes thereafter another man (Benjie) appeared with KARNO; that the latter entered the car handed him a plastic bag with printed name '7-eleven' at the same time saying "ETO NA ORDER MO"; that after examining the contents and convinced it was shabu, he handed the paper bag containing the buy bust money to KARNO, at the same time switching on the signal light of the car; that he identified himself as [a] police officer, grabbed back the buy bust money and arrested Karno who turned out to be accused Karno Sariff; that his back up PO3s Apduhan and Cruz arrested alias Benjie and Mads Saban respectively; and that both accused and Benjie and the pieces of evidence were brought to their office. ETHIDa
While the cross-examination of witness by Atty. Rolando Bea was in progress P/Insp. Aylin Casignia arrived. Parties stipulated on her qualification as forensic chemical officer and the genuineness and due execution of the Chemistry Report No. D-120-04 wherein she concluded that the specimen (Exhibit E) gave positive result to the test for methylamphetamine hydrochloride, a dangerous drug.
On re-direct, Tomas Calicdan identified the specimen (Exhibit E) and the machine copy of the genuine 2 P500.00 bills (Exhibit A).
On January 5, 2005, Atty. Valdez, counsel of Karno Sariff adopted the cross-examination of Atty. Bea, counsel of Mads Saban and it was elucidated further that it was the first time their office came to know Karno Sariff based on the allegation of Allan, the CI, that Karno Sariff has no derogatory record in their office; that the two pieces of P500.00 bills were placed on top and bottom of the boodle money to make it appear as P200,000.00; and that after seeing white crystalline substance inside the 7-eleven plastic bag and convinced it was shabu he arrested Karno Sariff while handing the paper bag containing the buy bust money.
PO2 Elleonito Apduhan, PDEA Metro Manila Office testified that sometime on March 2 and 3, 2004 Capt. Muarip received information from a CI to the effect that he could buy shabu from an alias Karno; that a briefing was conducted at around 11:00 a.m. for the purpose of a buy bust operation; that after the briefing Karno called up the CI and they were to go to Jollibee, San Andres, Malate, Manila; that the CI could introduce Calicdan who had been designated as poseur-buyer to Karno and to "strike a deal"; that through the glass window of Jollibee he saw Calicdan, the CI and alias Karno talking seriously; that after 30 minutes or an hour the two went out of Jollibee and Karno walked towards the highway; that Calicdan informed them afterwards that the transaction will be the following day; that in the morning of March 4, 2004 another briefing was made by Muarip with him, Calicdan, PO3 Rolando Dizon, Jonathan Cruz and SPO1 Salvador Soreda in attendance; that riding their cars, one driven by him and another by Calicdan proceeded to Jollibee and arrived thereat between the hours of 8:00 and 9:00 a.m.; that Calicdan and the CI proceeded inside Jollibee and Karno arrived at around 10:00 a.m.; that afterwards he saw the trio coming out and boarding the car of Calicdan and they trailed them two cars away; that the car of Calicdan stopped infront of a 3-storey house along Alejo Street, San Andres, Manila; that he saw Karno entering the house and after a minute or so Karno with a bag in hand together with Mads Saban came down from the house; that the latter stayed near the car of Calicdan while Karno went inside the car; that Mads Saban remained at the gate as if he was a "lookout"; that he noticed another man (later identified as Benjie Subanon) standing infront of the house; that not long after Calicdan executed a pre-arranged signal and he approached and assisted in the apprehension of Mads Saban; and that he saw the pack containing shabu which Calicdan bought from Karno at the crime scene.
He identified both accused and his Joint Affidavit of Apprehension with PO3 Jonathan Cruz in open court.
On cross-examination by Atty. Obejero, new counsel of Karno Sariff, it was gathered that the CI was then in their office on March 3, 2004; that he saw Calicdan, the CI and Karno transacting inside the Jollibee; that after Karno left, Calicdan briefed them near the San Andres Bukid of what transpired inside Jollibee; and that he came to know the price of the shabu at P2,000.00 per gram thereafter.
Atty. Bea adopted the cross (sic) of Atty. Obejero and in addition was able to elicit that the gate of the house was an arms-length from the car (of Calicdan) while the car he was driving on (sic) was approximately 10 meters therefrom; that seconds after the flashing of the light of the car of Calicdan occurred; that after coming out of the house it took a while for Karno to get inside the car because Mads Saban stopped and looked around; that Mads Saban was a little bit ahead of Karno when they exited the gate which was small; and that he presumed that Mads Saban was the lookout because he was looking around.
The prosecution offered its exhibit, were admitted and formally rested its case on November 16, 2005.
Accused Mads Saban testified that he has been a driver since 2002 of Yussine Taxi owned by Lalaine Reyes; that on March 4, 2004 at around 6:00 a.m. he reported for work; that at around 10:00 a.m. after conveying a passenger somewhere in Baclaran he was hailed by a male passenger (later identified as accused Karno Sariff) infront of Jollibee restaurant; that after boarding, Karno Sariff who was carrying 2 plastic bags with clothes, directed him to proceed to Alejo Aquino Street in San Andres Bukid; that upon arrival thereat Karno Sariff alighted, told him to wait, and entered an apartment house with a sign infront that reads "Apartment for Rent"; that he parked his taxicab two meters away from the gate of the apartment house; that after 15 minutes of waiting he saw a person (later identified as Benjie Subanon) entering the same apartment; that after a few minutes two females knocked on the door and they went inside the apartment followed by five men; that afterwards two of the five men (later identified as PO Cruz and Apduhan) approached him and asked who was the owner of the apartment; that he replied he does not know because he is merely a taxi driver; that both policemen frisked him and took his wallet and cellfone; that he was dragged inside that apartment and was told to lie prostrate on the floor; that when the duo left he stood up and went to the sidewalk near the corner of the street; that when the men went out (sic) the apartment house one of them with long hair, introduced himself as "Capt. Muarip" and uttered the words, thus: "ISAMA YAN! PARI PARIHAS YAN MUSLIM"; that his plea to bring him to the barangay hall because he was afraid to be salvaged was not heeded instead he was forced to board their vehicle and his taxicab was left behind; and that they were brought first to Camp Crame and then to the PDEA where Karno Sariff was investigated.
He denied the charge against him but claimed that he did not file charges against the police because they might include his family.
Karno Sariff y Sulayman denied the charge against him claiming that he did not know SPO1 Tomas Calicdan much less meeting him at Jollibee in San Andres in the evening of March 3, 2004 (he was at home with his wife) and in the morning of March 4, 2004. He went on to say that he is a businessman engaged in the buy and sell of clothes; that he earns an average of P15,000 per month; that in the morning of March 4, 2004 he went to Baclaran to buy stocks worth P7,000.00; that after taking breakfast at McDonalds in Baclaran, he rode on a taxicab driven by accused Mads Saban whose name he came to know after arrest and during detention; that he passed by the place of Benjie Subanon in Alejo Aquino Street, San Andres to collect a 6 months old debt of P10,000.00 which the former incurred and used for his sick mother in the province; that after Benjie told him that he has no money at the time to pay him, he decided to go home using the same taxicab driven by Mads Saban but he was arrested inside the apartment of Benjie by the men of Capt. Muarip who afterwards demanded P500,000.00 in exchange for his freedom.
With no other evidence documentary or otherwise, both defense counsel formally rested their cases, respectively.
On rebuttal, SPO1 Tomas Calicdan merely reiterated that both accused were arrested by virtue of a valid entrapment on March 4, 2004 and that no attempt to extort money from accused was made by their team leader, Capt. Mannan Muarip. 3
After trial, the RTC rendered its judgment on November 10, 2006 convicting both accused as charged, disposing:
WHEREFORE, in Criminal Case Nos. 04-224762 and 04-225940 finding accused Karno Sariff y Sulayman in conspiracy with accused Mads Saban y Dalingding GUILTY beyond reasonable doubt in violating Sec. 5, Art. II of RA 9165, they are hereby sentenced each to life imprisonment and to pay a fine of P500,000.00 without subsidiary imprisonment in case of insolvency and to pay the costs.
The representative sample of the specimens are forfeited in favor of the government and the Branch Clerk of Court, accompanied by the Branch Sheriff, is directed to turn over with dispatch and upon receipt the said specimen to the Philippine [D]rug Enforcement Agency (PDEA) for proper disposal in accordance with the law and rules.
SO ORDERED.4
The RTC regarded the testimonies of the Prosecution's witnesses as credible. It noted that the Prosecution established against Sariff all the elements of the crime of illegal sale of prohibited drugs defined and penalized under Section 5 of R.A. No. 9165; and that the Prosecution also proved the existence of a conspiracy between both Sariff and Saban warranting the conviction of the latter under Section 26 of R.A. No. 9165. cSEDTC
On appeal, the CA affirmed the RTC's decision noting that not only did the Prosecution successfully prove all the elements of the crimes charged, but that the Prosecution likewise showed that the integrity and evidentiary value of the prohibited drug presented in court had been preserved. It downplayed the supposed inconsistencies of the Prosecution's witnesses considering that each of said witnesses had corroborated the other's testimonies on material points. Lastly, echoing the RTC, it found sufficient evidence on the existence of the conspiracy between Sariff and Saban, making the latter liable under Section 26 of R.A. No. 9165.
Hence, this recourse, in which the accused-appellants continue to insist on their innocence, and contend that their guilt for the offenses charged was not shown beyond reasonable doubt.
Ruling of the Court
The appeal is bereft of merit.
Both of the accused noted several inconsistencies between the affidavits and the testimonies given in open court by the Prosecution's witnesses, insisting that the inconsistencies were sufficient basis to doubt the credibility of the witnesses. A review of the records reveals, however, that the inconsistencies related to minor and inconsequential details, and did not detract from the core of the testimonies of the witnesses to the effect that Sariff had sold dangerous drugs. It is an oft-cited rule that minor variances in the details of the witnesses' accounts, more frequently than not, should be seen as badges of truth instead of as indicia of falsehood, and they often bolstered the probative value of the testimonies. 5 Accordingly, the Court concurs with the lower court's sustaining the credibility of said witnesses, for nothing in the records suggested doubt about the truthfulness and believability of their testimonies.
Moreover, the claim of the Defense that what had really happened was instigation instead of entrapment cannot be accepted. The accused did not sufficiently establish the basis for the claim to that effect. It is cogent to remind them that a mere allegation did not establish itself as a fact because allegation alone was not proof. In any event, the records established that the accused were undeniably trading in dangerous drugs previous to the transaction that had led to their arrest and prosecution, and did not need any instigation from the arresting lawmen for them to commit the crime in question. Plainly enough, their arrest was made in the course of a valid entrapment while they were committing the offense in flagrante delicto.
We stress that the Prosecution was successful in proving the elements of the crime of illegal sale of dangerous drugs like shabu charged herein. The elements of the offense defined and punished under Section 5 of R.A. No. 9165 are, namely: (1) the identity of the buyer and the seller, the object of the sale, and the consideration; and (2) the delivery of the thing sold and its payment. 6 Based on the testimony of SPO1 Tomas C. Calicdan, Sariff was clearly shown to have sold the shabu to SPO1 Calicdan.
Moreover, the Prosecution established the identity of the dangerous drug during the trial, as the following excerpt of testimony indicates:
Fiscal Yap:
Q: Now, what transpired when this Alias Karno entered anew the vehicle from where you were seated?
Witness:
A: We talked with each other sir, and then I asked the shabu if it's already with him, sir.
Q: What was his replied? (sic)
A: He answered me. "Basta iyong bayad dala mo na rin kaliwaan tayo."
Q: So, what transpired next?
A: Then he handed me a plastic bag with markings 7-eleven, sir.
Q: What did he do with this plastic bag?
A: He handed me, sir.
Q: So, when he handed it to you what did he say?
A: And then he told me, "ito na iyong order mo."
Q: So, what did you do?
A: And then I examined the one handed by Alias Kano, sir.
Q: How did you examine?
A: I opened the bag and then I pinched the white crystalline substance, sir.
Q: So what was the result?
A: The white crystalline substance is soft, sir.
Q: What was your conclusion on that being soft?
A: My conclusion is that is the alleged shabu, sir.
Q: After concluding the same what did you do on your part?
A: And then I handed the paper bag with money worth P200,000.00, sir.
Q: Now, when it was handed, to whom where it was handed (sic) this P200,000.00?
A: To Alias Karno, sir.
Q: What did Karno do with this paper bag?
A: He got the paper bag sir.
Q: So, what did he do upon holding the same in possession?
A: I gave my pre-arranged signal, signal light, at the same time I introduced myself as Police Officer then I arrested him, sir.
Q: What was found in the possession of this Alias Karno?
A: I am the one who recovered the paper bag with the contents of the buy bust money because I did not give him the time to count the money, sir.
Q: What transpired next, Mr. Witness?
A: And then my companion came to my place assisted me and then we arrested two male persons, in the name of Alias Mads and Benjie, sir.
Q: Now, what happened to the plastic bag with the marking 7-eleven?
A: I marked the 7-eleven plastic bag, sir.
Q: What was the marking made?
A: I marked the plastic bag KSS and also the contents of that plastic bag, sir.
Q: What was the marking on the shabu itself?
A: I just put KSS, sir.
Q: When was the marking made on this plastic bag? SDAaTC
A: In our office, sir, during the investigation on March 4, 2004, sir. 7
There is no denying that the bag bearing the initials KSS was later presented in court as evidence.
The CA and the RTC concluded that Saban had conspired with Sariff in the selling of dangerous drugs. The former's participation in the criminal plan included his informing the police officers to wait because the dangerous drugs would still have to be weighed. He coupled this with his act of waiting until the transaction between Sariff and the poseur-buyer had been consummated. Such acts were indubitably overt ones, and became sufficient factual basis for Saban's incrimination pursuant to Section 26, in relation to Section 5, of R.A. No. 9165. Section 26 states:
Sec. 26. Attempt or Conspiracy. — Any attempt or conspiracy to commit the following unlawful acts shall be penalized by the same penalty prescribed for the commission of the same as provided under this Act:
(a) Importation of any dangerous drug and/or controlled precursor and essential chemical;
(b) Sale, trading, administration, dispensation, delivery, distribution and transportation of any dangerous drug and/or controlled precursor and essential chemical;
(c) Maintenance of a den, dive or resort where any dangerous drug is used in any form;
(d) Manufacture of any dangerous drug and/or controlled precursor and essential chemical; and
(e) Cultivation or culture of plants which are sources of dangerous drugs.
Indeed, the two accused had conspired to commit selling or trading dangerous drugs within the context of the law. In this regard, the requirements to establish conspiracy have been discussed in Bahilidad v. People, 8 as follows:
There is conspiracy "when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Conspiracy is not presumed. Like the physical acts constituting the crime itself, the elements of conspiracy must be proven beyond reasonable doubt. While conspiracy need not be established by direct evidence, for it may be inferred from the conduct of the accused before, during and after the commission of the crime, all taken together, however, the evidence must be strong enough to show the community of criminal design. For conspiracy to exist, it is essential that there must be a conscious design to commit an offense. Conspiracy is the product of intentionality on the part of the cohorts.
It is necessary that a conspirator should have performed some overt act as a direct or indirect contribution to the execution of the crime committed. The overt act may consist of active participation in the actual commission of the crime itself, or it may consist of moral assistance to his co-conspirators by being present at the commission of the crime or by exerting moral ascendancy over the other co-conspirators. Hence, the mere presence of an accused at the discussion of a conspiracy, even approval of it, without any active participation in the same, is not enough for purposes of conviction.
Conformably with the foregoing, the CA and the RTC correctly declared that Sariff and Saban shared a common criminal design to sell dangerous drugs.
WHEREFORE, the Court DISMISSES the appeal; AFFIRMS the decision promulgated on November 25, 2009 by the Court of Appeals finding and pronouncing accused-appellant MADS SABAN y DALINDING guilty beyond reasonable doubt of the offenses as charged, and accordingly punishing them life imprisonment and to pay a fine of P500,000.00; and ORDERS them to pay the costs of suit.
SO ORDERED."
Very truly yours,
(SGD.) WILFREDO V. LAPITANDivision Clerk of Court
Footnotes
1.Rollo, pp. 2-23; penned by Associate Justice Stephen C. Cruz, and concurred in by Associate Justice Amelita G. Tolentino (retired) and Associate Justice Vicente S.E. Veloso (retired).
2. CA rollo, pp. 20-30; penned by Judge Alejandro G. Bijasa (retired).
Title
*Title corrected to reflect Mads Saban y Dalinding as the lone accused-appellant.
Dispositive portion
*Dispositive portion corrected to exclude Karno Sariff y Sulayman in the judgment as accused-appellant.
3.Rollo, pp. 3-8.
4. CA rollo, pp. 71-72.
5.People v. Sabangee, G.R. No. 186120, January 31, 2011, 641 SCRA 164, 172.
6.People v. Cardenas, G.R. No. 190342, March 21, 2012, 668 SCRA 827, 834.
7. TSN, July 27, 2004, pp. 26-28.
8. G.R. No. 185195, March 17, 2010, 615 SCRA 597, 606.