This is an automatic review of the Decision, dated 8 March 1996, of the Regional Trial Court, Branch 35 of Manila in Criminal Case No. 95-142470, which sentenced accused-appellant Jimmy Sapal ("accused") to DEATH and to pay the fine of ten million pesos (P10,000,000.00) after he was found guilty beyond reasonable doubt of the crime of unlawful possession of three (3) kilograms of marijuana.1 [Penned by Judge Ramon P. Makasiar.]

The Information charged accused and his wife, Maria Luisa Sapal, with violation of Section 8, Article II in relation to Section 2(e) (1), Article I, Republic Act No. 6425, as amended, committed as follows:

Upon motion of the prosecution, the trial court dismissed the charge against Maria Luisa Sapal. Only accused was thus arraigned. At his arraignment, accused entered a plea of not guilty. Subsequently, trial ensued.

The prosecution presented two (2) witnesses, namely, PO3 Jesus Gomez and Renee Eric P. Checa, a forensic chemist. Gomez testified as to the events leading to the arrest of accused.3 [TSN, Testimony of Jesus Gomez, 17 October 1995, pp. 5-16.] According to Gomez, he is an investigator of the Drug Enforcement Unit (DEU) of the Western Police District (WPD) Command at U.N. Avenue in Manila. On 22 April 1995, around 3:30 in the morning, the office of the DEU received a call from a reliable informant that accused, who had a standing warrant of arrest, had been seen at Jocson St., Sampaloc, Manila. The warrant of arrest was issued by then Judge Roberto A. Barrios (now Justice of the Court of Appeals) for failure of accused to appear at the hearing of a criminal case involving illegal possession of .3381 gram (less than 1 gram) of "shabu" which was earlier filed against him.4 [Exhibit "E."]

Acting on the said information, Senior Inspector Ferdinand Ampil, Chief of the DEU, briefed his men about accused. Ampil then mobilized a team composed of fourteen (14) police operatives, including Gomez, to nab accused. To seal all possible escape routes of accused, the team was divided into three (3) groups: one group was instructed to proceed to Jocson Street, another group to Lepanto Street and the last group to Earnshaw Street. Acctä mis

Gomez was assigned to the team led by Ampil. Their group proceeded to Jocson Street where they spotted the mica blue Toyota Corolla with plate number TSR 619 which was reported to be frequently used by accused. Apparently, accused sensed the presence of the law enforcers because he tried to flee by driving the car towards Earnshaw Street. The other groups, however, managed to block the car at the corner of Earnshaw and Lepanto streets. Accused was with his wife.

The police operatives approached the car, identified themselves and informed accused that he was being arrested pursuant to the warrant issued by Judge Barrios. Accused and his wife were told to get down from the car. Forthwith, Gomez conducted a search of the vehicle. In the course thereof, Gomez found a light green plastic bag5 [Exhibit "B."] in the back seat of the car containing three (3) bricks of suspected marijuana. One brick was wrapped in a newspaper tied with a string while the other two were wrapped in an aluminum foil bound with masking tapes.6 [Exhibits "B-1," "B-1-a" to "B-1-c;" "B-2," "B-2-a" to "B-2-c," and; "B-3," "B-3-a" to "B-3-c."]

Accused and his wife were brought to the police headquarters in U.N. Avenue, Manila for investigation. The bricks of suspected marijuana were referred to the Criminal Investigation and Laboratory Division for examination. Checa, the chemist on duty at the time, testified that the results of the tests he conducted confirmed that the three (3) bricks were marijuana, a prohibited drug. Each brick weighed about one (1) kilogram and the total gross weight of the illegal substance was placed at three (3) kilograms.7 [Exhibits "C" and "D;" TSN, Testimony of Renee Eric Checa, 3 October 1995, pp. 6-14.]

For his part, accused denied the charges against him and claimed that he was a victim of a "frame-up". The defense presented as witnesses accused, his wife, Maria Luisa, and their friends, Jerry and Marlene Cayetano, The defense’ version of what transpired during the arrest of accused is as follows:8 [TSN, Testimony of Jimmy Sapal, 6 November 1995, pp. 5-20; TSN, Testimony of Jerry Cayetano, 18 January 1996, pp. 4-10; TSN, Testimony of Maria Luisa Sapal, 23 January 1996, pp. 4-11; TSN, Testimony of Marlene Cayetano, 24 January 1996, pp. 4-8.]Misä act

At around 1:00 in the morning of 22 April 1995, accused and his wife, who both just arrived from Hongkong, proceeded to the house of Jerry and Marlene to deliver their "pasalubong". The group decided to eat out thus they all boarded the mica blue Toyota Corolla which accused borrowed from one Maria Theresa Yamamoto. Accused was driving the car while his wife was seated beside him. Jerry and Marlene were seated at the back. When they reached the corner of Lepanto and Earnshaw Streets, their car was blocked by two (2) vehicles carrying armed men. These men alighted from their vehicles, approached the car driven by accused and poked their guns at its passengers. Accused and his companions were ordered to get out of the car. They did as told. Two (2) policemen, Gomez and SPO2 Leoncio Donor, Jr., with their flashlights, then conducted an on-the-spot search. Gomez was heard to have uttered, "Negative for drugs." Turning his attention to accused, Gomez ordered him to board the Toyota Corolla to be brought to the headquarters. The other three (3) companions of accused were made to board one of the vehicles used by the police operatives. Sâ djad

Accused further testified that he was blindfolded while on board the Toyota Corolla with the police operatives. He was not brought to the headquarters but to an undisclosed place which he later learned to be Maples Inn in Apacible Street. There, he was made to undress and then mauled and tortured. The police operatives took his wallet which contained seven thousand pesos, a few Hongkong dollars and several ATM cards. They coerced him into divulging to them the PIN numbers of his ATM cards. Accused gave them the correct PIN number to his Far East Bank account but purposely mixed up the other PIN numbers to his other bank accounts. As a result, the police operatives were able to withdraw the amount of thirty thousand pesos from his Far East Bank account. His other two (2) ATM cards were eaten up by the machines. Accused was detained in Maples Inn for four (4) days and on 25 April 1995, he was finally brought to the police headquarters for inquest.

At the headquarters, accused initially refused to sign the Booking Sheet and Arrest Report. Gomez, however, took out his gun. He (Gomez) removed five bullets from the gun but left one bullet. He then rolled the cylinder and poked the gun at the accused. He pulled the trigger but the gun did not fire. Trembling with fear, accused hastily signed the Booking Sheet and Arrest Report.9 [TSN, Testimony of Jimmy Sapal, 6 November 1995, pp. 19-30.]

Maria Luisa, Jerry and Marlene, in their respective testimonies,10 [TSN, Testimony of Jerry Cayetano, 18 January 1996, pp. 10-20; TSN, Testimony of Maria Luisa Sapal, 23 January 1996, pp. 11-27; TSN, Testimony of Marlene Cayetano, 24 January 1996, pp. 8-12.] averred that they were ordered to board one of the vehicles of the police operatives. They were brought to the headquarters of the WPD in U.N. Avenue, Manila. According to Jerry, upon reaching the headquarters, he was mauled and tortured. The police operatives were forcing him to admit that "shabu" was recovered from their group. Jerry insisted that no illegal drugs were recovered from any of them. In another room, Marlene and Maria Luisa were also being coerced into admitting that illegal drugs were recovered from their group. Like Jerry, Marlene and Maria Luisa refused to do so. Sppedscâ

Jerry, Marlene and Maria Luisa were detained at the headquarters for a day. Thereafter, they were transferred to the Maples Inn. They learned that accused was also being kept there. Upon Maria Luisa’s plea, she was allowed to see her husband but only for a few minutes. They were detained in Maples Inn for three (3) days. Accused was not with them during the entire time.

Thereafter, they were all brought back to the headquarters. Florentino and Jovita Balgos, Marlene’s parents, came to visit them. Florentino, a retired policeman, talked to Ampil and after their conversation, Jerry and Marlene were released. Ampil warned the couple against testifying for accused. Maria Luisa was released on 14 September 1995 when the trial court dismissed the case as against her.11 [Records, Criminal Case No. 95-142470, p. 77.]

In the course of the trial, Joel N. Go filed a motion,12 [Id., at 129.] dated 16 October 1995, seeking the release of the Toyota Corolla driven by accused at the time of his arrest. Go claimed that he is the owner of said car having bought the same from Maria Theresa Yamamoto. However, on 20 April 1995, Yamamoto borrowed the car from Go as she had to fetch a friend (a businessman), who was arriving from Hongkong, from the airport. In his motion, Go stated that he did not know the accused and that he was not involved in the crime for which accused was being tried. CÓ alrsc

After trial, the trial court rendered its Decision the dispositive portion of which reads:

Accused seasonably filed his notice of appeal. In his appeal brief, he made the following assignment of errors:

These contentions shall be discussed jointly considering that the issues they raise are interrelated and deal with the question of whether or not the guilt of accused was proven beyond reasonable doubt to warrant the supreme penalty of death.

The Court finds for the accused.

In convicting the accused, the trial court accorded full faith and credence to the testimony of Gomez who, as a police officer, was presumed to have performed his duty in a regular manner. The testimonies of the defense witnesses, upon the other hand, were given scant consideration on account of their affinity to the accused.

While the Court is mindful that law enforcers enjoy the presumption of regularity in the performance of their duties, this presumption cannot prevail over the constitutional right of the accused to be presumed innocent15 [People vs. Pagaura, 267 SCRA 17 (1997); People vs. Wong Chuen Ming, 256 SCRA 182 (1996); People vs. Melosantos, 245 SCRA 569 (1995); People vs. Cruz, 231 SCRA 759 (1994).] and it cannot, by itself, constitute proof of guilt beyond reasonable doubt.16 [People vs. Pagaura, ibid.; People vs. Vivar, 235 SCRA 257 (1994).] In this case, there are attendant circumstances that, to the Court’s mind, negate the presumption accorded to the prosecution witness. In fact, there is sufficient evidence to show that the manner by which the law enforcers effected the arrest of accused was highly irregular and suspect. Sceä dp

Gomez claimed that they arrested accused pursuant to the warrant issued by Judge Barrios in Criminal Case No. 94-133847. The Alias Order of Arrest against accused stated:

Contrary to the clear directive of the warrant, however, the law enforcers never brought him before Judge Barrios. Gomez himself admitted the same and did not offer any convincing explanation for this omission: Edpä sc

It must be pointed out that the alias warrant of arrest against accused was issued by Judge Barrios only because accused failed to appear during his arraignment in Criminal Case No. 94-133847. The information in said criminal case charged accused of possession of .3381 gram of "shabu". Without meaning to make light of the said offense, the amount of illegal substance allegedly recovered from accused therein, i.e., less than one (1) gram, hardly made him a "notorious drug dealer" as what the prosecution tried to present.

Moreover, there is no dispute that accused was arrested with Maria Luisa on 22 April 1995. In his testimony, Gomez claimed that they brought accused and his wife to the headquarters and he (Gomez) immediately prepared the necessary documents.19 [Id., at 47.] The records, however, reveal that the documents relating to the arrest of accused and his wife, e.g., Booking Sheet and Arrest Report20 [Exhibit "5;" Records, p. 6.] and Affidavit of Apprehension,21 [Records, pp. 13-17.] were prepared three (3) days after the arrest. The length of time that it took the police officers to prepare these documents, which otherwise involved routine paper work, seriously casts doubt on their credibility. Edâ p

Further, the case was submitted to the inquest prosecutor only on 25 April 1995. The Information against accused and his wife was subsequently filed on 26 April 1995. Gomez never offered any explanation for said delay in delivering accused and his wife to the proper authorities.

It was not likewise shown that accused was fully apprised of his rights under custodial arrest. Specifically, accused was not assisted by counsel when he was under custodial investigation in violation of Republic Act No. 7438. Section 2(a) of said law provides that "[a]ny person arrested, detained or under custodial investigation shall at all times be assisted by counsel." Gomez offered a flimsy excuse for the absence of counsel to assist accused, thus:

Admittedly, accused is deemed to have waived his right to question the irregularities attending his arrest for his failure to raise the same at the opportune time, i.e., before he entered his plea.23 [People vs.Cabiles, 284 SCRA 199 (1998).] Nonetheless, the peculiar factual circumstances surrounding the case, e.g., the police authorities’ failure to comply with the clear directive of the warrant of arrest issued by Judge Barrios, the undue delay in preparing the documents relating to the arrest of accused and his wife and in delivering them to the proper authorities for inquest, and the failure of the law enforcers to provide accused with a counsel during the custodial investigation, effectively destroy the presumption of regularity in the performance by Gomez and his colleagues of their duties. Such being the case, the presumption of regularity cannot be made the sole basis of the conviction of accused. Edpâ mis

If anything, these irregularities give credence to the allegations of accused that the law enforcers extorted money from him. As narrated by accused, his ATM cards were confiscated from him during his arrest and he was made to divulge to them the corresponding PIN numbers. He only gave them the correct PIN number to his Far East Bank account. A certification obtained from the branch manager of Far East Bank, Adriatico, Manila, shows that on 22 April 1995, the day accused and his wife were arrested, there were six (6) ATM withdrawals in the amount of five thousand pesos per transaction or a total of thirty thousand pesos from the Far East Bank account of accused. The certification24 [Rollo, p. 162.] reads:

The certification was not presented during trial and was submitted only as an attachment to the appeal brief of accused. This procedural lapse cannot be imputed to the accused. The lawyer of the Public Attorney’s Office who represented accused on appeal gave this explanation for the non-availability of the evidence during the trial, thus: Jjä sc

The Court cannot completely disregard this piece of evidence as it strongly corroborates the testimony of accused that the law enforcers were able to withdraw money from his Far East Bank account through the ATM. Accused testified, thus:

It appears that there is a discrepancy between the testimony of accused and the certification as to the amount actually withdrawn from the Far East Bank account. In his testimony, accused averred that the amount withdrawn was P20,000.00 while the certification stated that the total amount withdrawn on 22 April 1995 was P30,000.00. This inconsistency, however, is inconsequential. What is relevant is that it has been sufficiently established that several withdrawals were made from the Far East Bank account of accused through the ATM on 22 April 1995 and that these withdrawals could not have been made by accused and his wife because they were then already under arrest. This fact strongly bolsters the assertion of accused that his arrest was impelled by illegitimate motive on the part of the law enforcers. Indeed, Jä lexj

Moreover, the Court finds no sufficient reason to disbelieve the testimonies of defense witnesses, particularly Jerry and Marlene. The fact that they are friends of the accused and his wife does not make their testimonies unworthy of credence. If they were not really with accused and his wife on 22 April 1995, it would be against human nature for them to risk incriminating themselves by testifying that they were with accused and his wife at the time the marijuana was purportedly found in their car.

Likewise, the criminal complaint28 [Exhibit "10;" Information, I.S. No. 95F-19731, 18 September 1995. Original Records, p. 203.] for arbitrary detention filed by Jerry and Marlene against Ampil, Gomez and Donor, among others, enhances the plausibility of the defense’ version of the events on 22 April 1995. The same cannot be lightly brushed aside absent any showing of any dubious or improper motive on the part of the Cayetanos in making such a serious charge against said law enforcers. LexjÓ uris

The Court is convinced that, as testified to by the defense witnesses, there were four (4) of them in the car at the time when the law enforcers swooped down on accused. The marijuana, assuming that there was indeed marijuana found in the car, was not attributed to the other three (3) passengers of the car simply because as to them the same would be inadmissible in evidence. Accused was singled out because there was a standing warrant against him. The marijuana could be used as evidence against him. The fact, however, that he has a pending criminal case for illegal possession of "shabu" does not ipso facto make him the owner of the marijuana "discovered" in the car. It must be noted that the marijuana was not found in the person of the accused but in the car with three other passengers. The marijuana could have belonged to any one of them.

It is well-settled that "where the circumstances shown to exist yield two (2) or more inferences, one of which is consistent with the presumption of innocence while the other or others may be compatible with the finding of guilt, the court must acquit the accused: for the evidence does not fulfill the test of moral certainty and is insufficient to support a judgment of conviction."29 [People vs. De Los Santos, G.R. No. 126998, 14 September 1999; People vs. Fider, 223 SCRA 117 (117).] In this case, the prosecution failed to present evidence to overcome the presumption of innocence accorded by the Constitution to the accused. To paraphrase an admonition expressed by the Court in an earlier case,30 [People vs. Melosantos, 245 SCRA 569 (1995).] much as we share the abhorrence of the disenchanted public in regard to the proliferation of drug pushers, the Court cannot allow an individual to suffer the supreme penalty of death based on insufficient factual nexus of that person’s participation in the commission of the offense.31 [Id., at 587.]JuriÓ smis

WHEREFORE, the Decision of 8 March 1996 is REVERSED and SET ASIDE and accused-appellant Jimmy Sapal y Nasa is ACQUITTED of the crime charged, based on reasonable doubt. The Director of the Bureau of Corrections is ORDERED to cause the immediate release of accused unless he is, otherwise, detained for some other lawful cause. Further, the Drugs Enforcement Unit of the Western Police District is, likewise, ORDERED to release the Toyota Corolla with plate number TSR 619 to movant-appellant Joel N. Go. No costs.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Purisima, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.

Pardo, J., on official business abroad. Jjjä uris