This is an appeal from the decision1 [Per Judge Carmen G. San Vicente.] dated 1 March 1993 of the Regional Trial Court of Naga City, Branch 24, finding accused-appellant Apolinar Lazaro y Servania guilty of the crime of illegal possession of firearms and ammunition under Section 1 of Presidential Decree No. 1866 and sentencing him to suffer the penalty of reclusion perpetua and to pay the costs.

The information2 [Rollo, p. 8.] dated 6 May 1991, docketed as Criminal Case No. 91-3483, filed against accused-appellant alleged: Jurismis

It appears that a separate case for homicide, docketed as Criminal Case No. 91-3487, was filed against the accused3 [Records, pp.6-12.] but was tried separately before the same judge.

Upon arraignment in Criminal Case No. 91-3483 (the illegal possession case), accused-appellant entered a plea of not guilty and thereafter, trial on the merits ensued.

To prove its case, the prosecution presented four (4) witnesses, namely: Pfc. Edilberto Puncia, Sgt. Alejandro Bonnet, Cpl. Jose Manzanero, and Major Jose A. Tuazon. Jjjuris

The facts as shown by the evidence of the prosecution reveal that on 05 May 1990, at around 3:30 p.m., Police Sergeant Alejandro Bonnet was on board a Mobile Patrol conducting an inspection of traffic policemen. While cruising along Panganiban Drive in Naga City, his attention was called by bystanders who were shouting that there was a bloodied man beside the driver of a Toyota type jeep that was traveling south. This prompted P/Sgt. Bonnet to go after the said vehicle.4 [TSN, October 7, 1990, pp. 23-24.]

When the Toyota jeep stopped along Gen. Luna Street, Bonnet was able to see a man with blood all over him beside the driver. justice

P/Sgt. Bonnet then instructed the driver to follow the mobile patrol to the Bicol Regional Hospital.5 [Ibid., p. 25.] When they arrived at the Bicol Regional Hospital, he saw that his station commander, Police Major Jose A. Tuazon, was waiting for them.

It appears that earlier Police Major Tuazon received a telephone call at around 4:00 a.m. informing him that a shooting incident had occurred at Queborac, Naga City6 [TSN, October 17, 1991, p. 4.]. Major Tuazon then immediately dispatched Capt. Guisic and Pat. Barbosa to the crime scene in order to investigate the report.

Moments later, Major Tuazon received another telephone call, this time from the Naga City Hospital informing him that a wounded man, on board a yellow colored Toyota Tamaraw jeep driven by a person armed with a handgun, was brought for treatment at the hospital7 [Ibid., pp. 4-5.]. Thereafter, Major Tuazon, together with Pfc. Edilberto Puncia proceeded to the Naga City Hospital. Upon their arrival, they were informed that the Toyota jeep had already left with the injured person and was on its way to the Bicol Regional Hospital. The police officers immediately proceeded to the said hospital. They took a shorter route and were able to arrive ahead of the Toyota jeep. After a short wait, they saw the Naga City Police Mobile Patrol arrive at the hospital escorting a Toyota Tamaraw jeep8 [Ibid., p. 6.] Esä m

The injured person was brought inside for treatment. As he was previously informed that the driver of the jeep was armed with a handgun, Major Tuazon ordered the said driver to step out of his jeep. He then saw the driver with a handgun tucked in his waist, pull out the handgun9 [Exhibit "A".] from its holster10 [Exhibit "A-1".] and drop it at the back of the driver’s seat.11 [TSN, October 17, 1991, pp. 6-9.] Upon seeing the gun, Major Tuazon pulled the driver out of the vehicle, got hold of the gun which turned out to be a .38 caliber revolver bearing Serial Number 1029315.12 [Ibid., p. 12.] The gun contained six empty shells.13 Exhibits "B" to "B-5".13

Major Tuazon then confronted the driver and asked him why he was carrying a gun and whether he had a license to possess said firearm. The driver did not respond to his question.14 [TSN, October 17, 1991, p. 11.] Jksmä â Ó

Maj. Tuazon brought the driver to the police headquarters and turned over the firearm to the duty investigator, Cpl. Jose Manzanero.15 [TSN, October 16, 1991, p.4.] At the police station, he learned that the name of the driver was Apolinar Lazaro, herein accused-appellant.

A certification dated August 20, 1991, issued by Supt. Antonio T. Sierra, Chief of the Firearms and Explosives Office (FEO) at Camp Crame was presented in court by the public prosecutor. The certification stated that accused-appellant is not a licensed or registered firearm holder of any kind or caliber.16 [TSN, October 17, 1991, p. 20.] Esâ msc

For his part, accused-appellant recounted the circumstances which led to his capture at the Bicol Regional Hospital. He Testified that on 5 May 1991, at around 9:00 a.m., he, together with his nephew Manolo Lazaro and Ricardo Ronquillo went to Marupit, Camaligan, Camarines Sur for a drinking spree.17 [TSN, May 27, 1992, pp. 3-6.] While drinking, accused-appellant and Ricardo Ronquillo allegedly had a little discussion about a fishing net. They left the place at around 3:00 p.m. onboard a Toyota Tamaraw jeepney being driven by his nephew, Manolo Lazaro.18 [Ibid., pp. 6-7.] On the way back, Manolo Lazaro stopped the jeep in order to urinate and while he was alighting therefrom, accused-appellant saw Ronquillo draw a gun and point it at him (accused-appellant). Allegedly in self-defense, accused-appellant grappled for the possession of the gun and as a result, he and Ronquillo fell to the ground.19 [Ibid., pp. 7-8.] As they continued grappling for the gun, accused-appellant heard several shots go off. Immediately after the shots were fired and while still grappling for possession of the gun, he heard somebody shout that he was hit. He realized that it was his nephew, Manolo Lazaro, who was shot and who was telling accused-appellant to bring him to the hospital. As he was still grappling with Ronquillo, he could not immediately do anything about his nephew’s cries for help. After a while, accused-appellant felt Ronquillo weakening and stop moving. He then drove Manolo Lazaro to the hospital as he was shouting for help. Accused-appellant claimed that he did not know what had happened to Ronquillo after he left him at the scene of the incident. He also could not recall where he had placed the gun.20 [Ibid. p. 9.] EsmmÓ is

Accused-appellant declared that he drove the Tamaraw jeepney to the Naga City Hospital but they were not accepted as the hospital had no facilities for emergencies.21 [Ibid., p. 10.] While driving to another hospital, he noticed a police car trailing them. He then gave a signal to the police car to escort them to a hospital. One of the policemen then alighted from the car and inspected the jeepney. The policeman did not take anything from the jeepney. The policeman then signaled accused-appellant to follow the patrol car to the Bicol Regional Hospital.22 [Ibid., pp. 10-12.] When they reached the hospital, accused-appellant went down from the Tamaraw jeepney and assisted in bringing down his nephew, Manolo Lazaro. Accused-appellant was then told by the policemen to ride in the police mobile car. As they were about to leave the hospital, he saw several persons searching the jeepney. The policemen then brought him to the City Jail where he remembered being asked why he was carrying a gun.23 [Ibid., pp. 12-13.] When the gun was shown to him, accused-appellant stated that he was not sure whether it was the same gun he was grappling with Ronquillo for, as the incident happened quite fast. He also cannot remember Major Tuazon’s account that accused-appellant pulled the gun and holster from his waist. What he remembers is that after alighting from the jeepney, he went around the jeepney and assisted Manalo because the latter was then leaning on the side of the jeepney.24 [Ibid., pp. 16-19.] Esmsoâ

In rebuttal, the prosecution presented Dr. Joel Jurado who testified that he conducted the autopsy on Ricardo Ronquillo. He found that the cause of death was due to loss of blood from his gunshot wounds.25 [TSN, July 21, 1992, pp. 21-22.] The victim died instantaneously. In his opinion, the injuries were not inflicted accidentally as more than one shot was inflicted on the victim.26 [Ibid., p. 27.]

In sur-rebuttal, accused-appellant testified anew and stated that both he and Ronquillo fell from the jeepney while grappling for the gun. He testified that during the struggle, there were times when the gun was in his possession and there were also times when it was in the possession of Ronquillo.27 [TSN, August 26, 1992, p. 4.] He cannot recall who was holding the gun when it was fired. Mseä sm

After trial, the lower court rendered a decision dated 1 March 199328 [Rollo, pp. 17-20.] finding accused-appellant guilty as charged, the dispositive portion of which reads:

Hence, this appeal where accused-appellant raises the sole assignment of error that the trial court erred in finding the accused guilty beyond reasonable doubt of the crime of illegal possession of firearms and ammunition qualified by homicide.29 [Appellant’s Brief, p. 1; Rollo, p. 34.]

In cases involving illegal possession of firearms under P.D. 186630 ["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"], as amended, the prosecution has the burden of proving the elements thereof, viz.: (a) the existence of the subject firearm; and (b) the fact that the accused who owned or possessed it does not have the corresponding license or permit to possess the same.31 [People vs. Khor, G.R. No. 126391, May 19, 1999; People vs. Bergante. 286 SCRA 629.] ExÓ sm

In the case at bench, the first element is beyond dispute as the subject firearm and six empty shells were recovered from the accused-appellant while he was alighting from the Tamaraw jeepney. Thus, Major Tuazon testified:

The subject firearm, its holster and the six empty shells were identified and offered in evidence during the trial.

As to the second element, accused-appellant contends that the prosecution failed to prove the absence of a license to carry a firearm as the prosecution merely marked in evidence a certification from the Firearms and Explosive Section in Camp Crame without presenting the person who issued the certification himself, a certain Antonio Sierra. Over the objection of accused-appellant’s counsel, the lower court admitted the exhibit on the ground that the same is an official public record and because the fiscal stated that he himself saw the signatory sign the document. Mesmä

The records of the case show that the prosecution merely presented in court the certification from the Firearms and Explosive Office before formally offering its documentary evidence. Thus:

X X X

XXX

XXX

XXX

XXX

Accused-appellant contends that the trial court erred in admitting and relying upon the said certification considering that the person who made the document was not presented in court to testify. Thus, accused-appellant argues, the certification should have been excluded for being hearsay. Missdaa

There is no merit in the above argument.

On several occasions, the Court has ruled that either the testimony of a representative of, or a certification from, the PNP Firearms and Explosive Office attesting that a person is not a licensee of any firearm would suffice to prove beyond reasonable doubt the second element of possession of illegal firearms.33 [Padilla vs. Court of Appeals, 269 SCRA 402; Rosales vs. CA, 255 SCRA 123; People vs. Orehuela, 232 SCRA 82.] Moreover, the rule on hearsay evidence admits of several exceptions.

One such exception is that provided for under Rule 130, Section 44 of the Rules of Court which states as follows: SdaÓ adsc

Relative to this provision, Rule 132, Section 28 of the same Rules allows the admission of the said document. Thus:

In the case at bench, the Certification issued by the Commanding Officer of the PNP-Firearm and Explosives Office, which is the repository of all records regarding firearms in the Philippines, is competent and admissible evidence to prove that accused-appellant is not a licensed holder or possessor of a firearm of any kind or caliber. Indeed, the certificate of a custodian that he has diligently searched for a document or an entry of a specified tenor and has been unable to find it ought to be as satisfactory an evidence of its non-existence in his office as his testimony on the stand to this effect would be.34 [3 Wigmore on Evidence, cited in People vs. Quebral, 68 Phil. 567.] RtcÓ spped

Accused-appellant finally argues that assuming that he is guilty, he should only be convicted of the crime of simple illegal possession not qualified by homicide. He offers two propositions in support of this argument.

First, accused-appellant argues that the information filed against him in Criminal Case No. 91-3483 did not clearly allege the crime of homicide. Instead, he argues, it was the separate information for homicide filed in Criminal Case No. 91-3487 which alleged all the elements of homicide. He states further that the case for homicide, for which he was likewise convicted, is now the subject of an appeal with the Court of Appeals. ScÓ lex

Second, accused-appellant argues that assuming that the information in Criminal Case No. 91-3483 sufficiently alleged the said qualifying circumstance, he still could not be convicted of the crime of illegal possession of firearms and ammunition qualified by homicide as the prosecution failed to prove the fact of homicide during the trial of Criminal Case No. 91-3483. The prosecution, he contends, did not produce any eyewitness to the homicide. Instead, the alleged eyewitness to the homicide, Manolo Lazaro, was only presented in Criminal Case No. 91-3487, the homicide case, which was being tried separately.

We do not find it necessary to consider accused-appellant’s arguments. The enactment of Republic Act No. 8294, which amended the provisions of P.D. 1866, has rendered said arguments moot and academic. Sclawä

Accused-appellant was convicted of illegal possession of firearms under Section 1 of P.D. No. 1866 which was the governing law at the time the crime was committed in 1991. Section 1 of P.D. 1866 provides:

Under the ruling in People vs. Quijada,35 [259 SCRA 191.] violation of P.D. 1866 is an offense distinct from murder or homicide and the accused is culpable for two separate offenses.

Republic Act No. 8294 has since amended P.D. No. 1866 by reducing the penalties for simple and aggravated forms of illegal possession and considering the use of an unlicensed firearm simply as an aggravating circumstance in murder or homicide. The law now provides:

The penalty of prision mayor in its maximum 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 than .38 caliber and 9 millimeter such as caliber .40, .41, .45 and also lesser caliber 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.

In view of these amendments introduced by R.A. 8294, this Court has recently in the case of People vs. Molina,36 [292 SCRA 742.] and reiterated in People vs. Feloteo,37 [295 SCRA 607.] that there can be no separate conviction of the crime of illegal possession of firearms under P.D. 1866. Thus in People vs. Molina, it was held: Jur-is

In the case at bench, it is not disputed that accused-appellant was charged, tried and convicted for two separate crimes of illegal possession and homicide. Accused-appellant, in his brief, refers to the homicide case in arguing that his conviction in the illegal possession case was not proper.39 [Rollo, pp. 47-49.] Similarly, the Solicitor-General, in his Brief, mentioned the homicide case in justifying the sentence handed down by the trial court.40 [Rollo, pp. 102-103.] Finally, the records themselves show that trial in the two cases proceeded separately.41 [Records, pp. 6-12.] The two separate cases, Criminal Case No. 91-3487 (for homicide) and Criminal Case No. 91-3483 (for illegal possession of firearm) were not tried jointly, although filed in the same trial court. Criminal Case No. 91-3487 was appealed to the Court of Appeals.42 [The Court of Appeals affirmed the judgment of conviction in its Decision dated March 29, 1996. Motion for reconsideration of the said decision was denied in a Resolution dated July 16, 1996. Petition for review on certiorari was denied by this Court on the ground that there was no reversible error, entry of judgment was made on November 13, 1996. The judgment of conviction in Criminal Case No. 91-3487 for homicide has thus become final.] Nc-mmis

In view of the amendments introduced by Republic Act 8294 to Presidential Decree 1866, separate prosecutions for homicide and illegal possession are no longer in order. Instead, illegal possession of firearms is merely to be taken as an aggravating circumstance in the homicide case. Scnc-m

R.A. 8294 took effect on July 6, 1997. The crime involved in the case at bench was committed on May 5, 1991. As a general rule, penal laws will generally have prospective application except where the new law will be advantageous to the accused. In this case R.A. 8294 will spare accused-appellant from a separate conviction for the crime of illegal possession of firearm. Accordingly, said law should be given retroactive application.

In People vs. Valdez,43 [G. R. No. 127663, prom. March 11, 1999.] this Court stated:

Accordingly, and in line with the above ruling, the accused-appellant should be spared from a separate conviction for the crime of Illegal Possession of Firearms, which is the subject of the present review. Ol-dmiso

IN VIEW WHEREOF, we REVERSE and SET ASIDE the decision finding accused-appellant guilty for violation of P.D. 1866. Accused-appellant is hereby acquitted of the said crime. Criminal Case No. 91-3483 is DISMISSED.

Melo (Chairman), Vitug, Panganiban, and Purisima, JJ., concur.