Thursday, December 8, 2016

Unique Criminal Case

Unique Criminal Case: Complex crime 
of 4 murders and frustrated homicide


This is a very interesting case involving a person whose name is not placed as an accused in the information but only mentioned as part of the body of the information narrating how the crime was committed and mentioning his name as having done the same in conspiracy of the person expressly accused.

The Petition for Certiorari and Prohibition that I prepared to be submitted to the Supreme Court is posted below.

If you are interested to know, read the post below. 

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Republic of the Philippines
Supreme Court
Manila



ROGELIO T. TANO,
                                    Plaintiff,

            - versus -                                           G.R. No. __________________
                                                                        (CA-G.R. SP No. 07034-MIN)

REGIONAL TRIAL COURT OF
KIDAPAWAN, BRANCH 17,
PEOPLE OF THE PHILIPPINES,
                                    Respondents.
x------------------------------------------x



Petition
for
Certiorari and Prohibition
with Application for SQAO/TRO/WPI




            Petitioner Rogelio T. Tano, by the undersigned counsel who is also his attorney-in-fact, respectfully files this Petition for Certiorari and Prohibition against the Resolution



The Timeliness



            On 23 November 2016 a copy of the Resolution of the Honorable Court dated 10 November 2016 denying the Motion for Reconsideration that was filed by the petitioner through counsel.


            The sixty (60) days within which a Petition for Certiorari and Prohibition may be filed fall on 22 January 2017.


            Thus, the filing of this Petition for Certiorari and Prohibition today, ___ December 2016, is timely.


            A copy of the same Resolution dated 23 November 2016 is attached hereto as ANNEX “A” in series.


            An original copy of the same motion for reconsideration mentioned above is attached hereto as ANNEX “B” series.


            The same motion for reconsideration was filed on 05 May 2016, fifteen (15) days after the receipt on 20 April 2016 of the Resolution dated 07 April 2016 denying the Application for Temporary Restraining Order (TRO) and Writ of Preliminary Injunction (WPI).


            Attached hereto as a series of ANNEX “C” is a copy of the Resolution dated 07 April 2016 was received by the undersigned counsel on 20 April 2016, giving until 05 May 2016 to file the same Motion for Reconsideration.




Why this Petition for Certiorari and Prohibition
be given due course



            To be given due course, the following are the requisites for any petition for certiorari and prohibition, to wit:


(1)  Existence of grave abuse of discretion;
(2)  There is no appeal, no plain or no speedy remedy in the ordinary course of law;
(3)  The petition is annexed with original or certified true copies of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent and pertinent thereto;
(4)  Sworn certification of non-forum shopping;
(5)  Sworn verification that the allegations in the petition were of personal knowledge and based on authentic records;
(6)  The petition is filed within sixty (60) days from the day of receipt of the order being challenged.


The provisions that provide rights for the filing of a certiorari and prohibition are found in Section 1 and Section 2 of Rule 65 are as follows:


SECTION 1. Petition for certiorari.—When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require.

The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46. (1a)

SEC. 2. Petition for prohibition.—When the proceedings of any tribunal, corporation, board, officer or person, whether exercising judicial, quasi-judicial or ministerial functions, are without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent to desist from further proceedings in the action or matter specified therein, or otherwise granting such incidental reliefs as law and justice may require.

The petition shall likewise be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46. (2a)


            In compliance, a copy of the verification & certification of non-forum shopping is attached to the petition.  In addition, a copy of the special power of attorney (SPA) executed by the petitioner appointing the undersigned counsel as his attorney-in-fact is attached hereto as ANNEX “D.”





The Issues



            The issues being submitted for the resolution of the Supreme Court here are:


(1)  Whether or not the Court of Appeals – Mindanao committed grave abuse of discretion tantamount to lack or excess of jurisdiction in ruling that the established doctrine that injunction will not lie to enjoin a criminal prosecution because public interest requires that criminal acts be immediately investigated and prosecuted for the protection of the society applies in the present application for a Temporary Restraining Order and/or Writ of Preliminary Injunction must be denied;


(1)  Whether the Court of Appeals – Mindanao committed grave abuse of discretion tantamount to lack or excess of jurisdiction in refusing to rule on the same application for TRO and/or WPI because doing so would pre-empt the resolution of the main case of certiorari and prohibition;


(2)  Whether the Court of Appeals-Mindanao committed grave abuse of discretion tantamount to lack or excess of jurisdiction in refusing to rule on the application for TRO/WPI just because the warrant of arrest was already issued; and


(3)  Whether the Court of Appeals – Mindanao committed grave abuse of discretion in ignoring the clear and undisputed facts that the court a quo, the RTC of Kidapawan, Branch 17, turned a blind eye on the following circumstances that clearly needed the aid of the appellate court to stop the abuse by the lower court, to wit:


                                                                          i.      The fact that petitioner Rogelio Tano is not being charged in the Information for the complex crime of murder and frustrated murder;


                                                                        ii.      The fact that the case was dismissed against the only person named as being charged means that the case was already dismissed and can no longer be revived;


                                                                      iii.      The fact that the crime up for discussion already prescribed and can no longer be prosecuted under Article 91 of the Revised Penal Code;


                                                                      iv.      The fact that the Municipal Circuit Trial Court of Makilala that conducted the preliminary investigation recommended to the Provincial Fiscal the filing of complex crime of murders and frustrated murder recommend the filing of the same case ONLY AGAINST GAUDENCIO TRAVELLA and the petitioner, Rogelio Tano, was not included; and


                                                                        v.      The fact that it is very clear there is no probable cause because of the following:


a.      No corpus delicti -- in the sense that no medical certificates or medico-legal certificates or certificates of death were presented to prove the existence of deaths of persons;


b.     No police reports submitted to validate the claims that the ambush indeed occurred on October 8, 1982 and that the persons named as the victims indeed were victims of that ambush;


c.      All material witnesses except for Eduardo Honorario retracted and reversed their testimonies while all the rest did not appear at the “reinvestigation” conducted by the Office of the Provincial Prosecutor to reconfirm their testimonies;


d.     The numerous inconsistencies of the testimonies that Eduardo Honorario delivered in court as against the nature of man’s habit and against his affidavit executed almost twenty (20) years ago before the Philippine Constabulary headquarters in Amas, Kidapawan and his testimonies before MCTC Makilala Presiding Judge Elena B. De Leon.



The Parties



(1)              The petitioner, ROGELIO T. TANO, is a septuagenarian who retired from government service with clean record at the Bureau of Customs and he may be served notices and other processes through his counsel at the latter’s office at Unit 1, No. 2368 Leon Guinto St. corner JB Roxas St., Malate, Manila.


(2)              One of the respondents is the PEOPLE OF THE PHILIPPINES, which is represented in this suit by the Office of the Solicitor General that may be served with notices and other processes at 134 Amorsolo St., Legaspi Village, Makati City.


(3)              The other respondent is the REGIONAL TRIAL COURT OF KIDAPAWAN, BRANCH 17, which may be served notices and other processes at the Hall of Justice, Kidapawan City.




The Material Facts and Antecedents



            A reading of the Resolution of the Court of Appeals-Mindanao dated 07 April 2016 shows that the Court of Appeals took the face value the allegations of the Material Facts and Antecedents mentioned by the Petitioner in the Petition for Certiorari and Prohibition filed before the CA.


            An original copy of the Petition for Certiorari and Prohibition filed on 08 October 2015 through registered mails is attached hereto as ANNEX “E” series, including the self-attachments.


            As written in the Petition for Certiorari and Prohibition filed before the Court of Appeals, the following are the “Material Facts and Antecedents”, to wit:


(1)              It is undisputed that a complaint for multiple murder and frustrated murder was filed in 1983 before the Municipal Circuit Trial Court of Makilala.


(2)              It is undisputed that the said complaint was based on the claim that on October 8, 1982, about 4:00 p.m., a Volkswagen Sakbayan was waylaid or ambushed on a road in Barangay Esperanza, Municipality of Tulunan, Province of North Cotabato.


(3)              It is also undisputed that it was claimed that those who died in the alleged ambush were ERNESTO PANCHO, MONINA PANCHO, NESTOR TESARA, and PATRICIA GRANITO.


(4)              It is also undisputed that it was claimed that MICHELLE PANCHO was injured in the same ambush and that she was yet a child when the incident occurred.


(5)              It is also undisputed that there were witnesses produced to prove the existence of the same alleged ambush and to prove that the persons so accused were indeed the culprits.


(6)              It is also undisputed that the witnesses so produced were:


                                                                          i.      EFREN PLENAGO -- Prosecution witness , a resident of La Esperanza, Tulunan, Cotabato;


                                                                        ii.      RODOLFO PANIZAL -- Prosecution witness, a resident of F. Cajelo, Tulunan, Cotabato;


                                                                      iii.      PRUDENCIO PAUNON – Prosecution witness, a resident of F. Cajelo, Tulunan, Cotabato;


                                                                      iv.      ANITA C. TISARA -- Private complainant for murder victim Nestor Tesara, a resident of Purok 3, F. Cajelo, Tulunan, Cotabato;


                                                                        v.      GERMAN C. GRANITO -- Son of murder victim Patricia Granito, a resident of Purok 4, New Panay, Tulunan, Cotabato;


                                                                      vi.      EDUARDO P. HONORARIO -- Prosecution witness, a resident of F. Cajelo, Tulunan, Cotabato;


                                                                    vii.      MICHELLE M. PANCHO and ERNESTO PANCHO II – Prosecution witnesses who are children of murder victims Ernesto Pancho and Monina Pancho, a resident of F. Cajelo, Tulunan, Cotabato; and


                                                                  viii.      BASILIO PANCHO – Prosecution witness, a resident of F. Cajelo, Tulunan, Cotabato.


(7)              It is also undisputed that these witnesses were produced to prove the existence of the ambush, the existence of the deaths of the four persons named above, the existence of the frustrated murder of Michelle Pancho, the claim that among those who staged the ambush were identified as GAUDENCIO TRAVELLA, ROGELIO TANO, JESUS TANO, EDDIE TALAMERA, RENATO CASTELLANES and EDISON SUAY.


(8)              It is also undisputed that these witnesses were all presented to the Municipal Circuit Trial Court of Makilala that then conducted preliminary investigation by receiving the affidavits and the testimonies of the alleged witnesses.


(9)              It is also undisputed that the MCTC recommended to the Provincial Fiscal (now the Office of the Provincial Prosecutor of North Cotabato) the filing of complex crime of four murders and one frustrated murder.


(10)         It is undisputed that the MCTC recommended the filing of complex crime of four murders and frustrated murder only against one person, Gaudencio Travella.


(11)         It is undisputed that the MCTC of Makilala came out with the following Resolution:


RESOLUTION

The bases for the filing of the criminal complaint against ROGELIO TANO, JESUS TANO, EDDIE TALAMERA, RENATO CATILLANES, GAUDENCIO TRAVELLA AND EDISON SUAY, in the above-entitled case are the sworn statements of Prudencio Paunon, Efren Plenago, Eduardo Honorio, Julius Cordero and Joint Affidavit of Rodolfo Panizal and Basilio Pancho. Summons issued requiring accused GAUDENCIO TRAVELLA, to submit his counter-affidavit and that of his witnesses if any but failed to do so within the period prescribed therein.

Failure on the part of the accused to submit counter-affidavit, this Court resolves to order the records of this case as to GAUDENCIO TRAVELLA only, be transmitted to the Provincial Prosecutor, Kidapawan, Cotabato, for the filing of the information or any appropriate action, whereby the facts and the law under the criminal complaint had been duly adduced mainly on prosecution’s witnesses sworn statements and other evidence to support the prima facie case of “Multiple Murder and Frustrated Murder”, committed on October 8, 1982, at Barangay La Esperanza, Tulunan, Cotabato.

Let copies of this Resolution be furnished accordingly all parties.

SO ORDERED.

Makilala, Cotabato, Philippine s, this 30th day of September, 1991.


(12)         It is also undisputed that the Office of the Provincial Fiscal (now Office of the Provincial Prosecutor) did not conduct anymore any preliminary investigation into the alleged multiple murder and frustrated murder.


(13)         A copy of the same Resolution is attached hereto as ANNEX “F” of the Petition for Certiorari and Prohibition filed before the Court of Appeals-Mindanao; the same is now marked as ANNEX “E-154” and ANNEX “E-170” of this Petition for Certiorari and Prohibition.


(14)         It is undisputed that the Office of the Provincial Fiscal then filed a criminal information sheet for multiple murder and frustrated murder.


(15)         It is undisputed that in the criminal information, the Provincial Fiscal named only one person as the accused and that was no other else as GAUDENCIO TRAVELLA.


(16)         It is undisputed that the criminal information as the records of the case showed was filed at 9:00 a.m. of March 4, 1992 and it read as follows:


INFORMATION


The Undersigned accuses GAUDENCIA TRAVELLA of the crime MULTIPLE MURDER, committed as follows:


That at around 4:00 o’clock in the afternoon of October 8, 1982, at Barangay Esperanza, Municipality of Tulunan, Province of Cotabato, Philippines, the above-named accused in company with ROGELIO TANO, JESUS TANO, EDDIE TALAMERA, RENATO CASTELLANES and EDISON SUAY, conspiring, confederating together and mutually helping one another, with intent to kill, armed with assorted high powered firearms, did then and there, wilfully, unlawfully, feloniously and treacherously assault, attack and fire at a passing Volkswagen vehicle boarded by ERNESTO PANCHO, MONINA PANCHO, NESTOR TESARA, PATRICIA GRANITO and MICHELLE PANCHO, thereby hitting and inflicting mortal gunshot wounds to ERNESTO PANCHO, MONINA PANCHO, NESTOR TESARA and PATRICIA GRANITO which caused their instantaneous death and on the same occasion, seriously wounding MICHELLE PANCHO, accused having performed all the acts of execution which would produce the crime of Murder as a consequence, if not due to the timely medical intervention which saved the life of MICHELLE PANCHO.

With the aggravating circumstance of evident premeditation, and taking advantage of superior strength.

CONTRARY TO LAW.

Kidapawan, Cotabato, Philippines, November 29, 1991.



(17)         It is restated that it is undisputed that a reading of the criminal information, the Provincial Fiscal named only one person as the accused and that was no other else as GAUDENCIO TRAVELLA.


(18)         A certified copy of the INFORMATION is attached hereto as ANNEX “G” (of the Petition for Certiorari and Prohibition with the Court of Appeals-Mindanao and it is now ANNEX “E-171” of this Petition for Certiorari and Prohibition.)


(19)         It is also undisputed that the same court a quo issued on July 28, 1998 an Order dismissing the same case.


(20)         The same Order, a copy thereof is attached hereto as ANNEX “H” that is ANNEX “E-172” of the present petition, read as follows:


ORDER


Acting on the prosecution’s Motion to Dismiss filed on July 15, 1998, attaching therewith the Affidavit of Desistance of the children of the spouses Ernesto Pancho and Monina Pancho in the persons of Michelle Pancho and Ernesto Pancho II together with their witness Eduardo P. Honorario and further alleging that due to the execution of said Affidavit of Desistance, the prosecution is left with no witness for the prosecution of the case against Gaudencio Travella, the same is well taken.


              WHEREFORE the Court, finding the Motion to Dismiss tenable and reasonable, thereby grants the dismissal of the above-entitled case as against Gaudencio Travella only.


              The bail bond put up by the accused is ordered cancelled as no longer necessary and return to its registered owner upon proper receipt thereof, hence, the Register of Deeds of Koronadal, South Cotabato, is directed to cause the cancellation of annotation of encumbrance of the back of the said title.


              SO ORDERED.


              July 28, 1998 at Kidapawan City, Cotabato.


(21)         It is undisputed that only one witness has been left behind as against petition Rogelio Tano because all the others backed out by executing affidavits of desistance before they can testify in court.


(22)         The only witness who has been left behind has been EDUARDO HONORARIO, who testified in court and his testimonies are proved by the existence of the Transcript of Stenographic Notes (TSN) and a copy thereof is attached hereto as ANNEX “I” series (of the petition at the Court of Appeals but ANNEX “E-173” of the present case..


(23)         Under intense questioning of the undersigned attorney, HONORARIO was clearly impeached after he was clearly exposed as an incredible witness, as explained well in both the Memorandum and the Motion for Reconsideration stated above.


(24)         In brief, the Memorandum of the petitioner argued as follows:


a.                  Rogelio Tano has not been charged or not impleaded in the Information as an accused and a reading of the same clearly showed that ONLY GAUDENCIO TRAVELLA WAS THE ACCUSED;


b.                  The instant Information is already dismissed and cannot be revived as against Rogelio Tano because it was already dismissed upon the motion of the only person accused, Gaudencio Travella;


c.                   Even assuming the Information is valid as to Rogelio Tano, it cannot be used against Rogelio Tano because the crime has already prescribed in so far he is concerned; and


d.                  Even assuming the Information is valid as to Rogelio Tano and it can still be used against Rogelio Tano, still the case must be dismissed because there is no probable cause for the purpose of hearing and deciding the case in a manner that it will never be rendered a futile exercise of authority – BY REASON OF CLEAR IMPEACHMENT OF THE LONE WITNESS EDUARDO HONORARIO, by reason of non-presentation of the death certificates or medico-legal reports of the alleged victims, and by the withdrawal or affidavit desistance executed by all witnesses except for Honorario.


(25)         The entire writings and annexes and exhibits mentioned and attached to the Memorandum are hereby adopted as part of this Petition for Certiorari and Prohibition (with the Court of Appeals-Mindanao).


(26)         The Court a quo (RTC of Kidapawan) committed grave abuse of discretion in denying the motion for determination of probable cause because its rulings are patently void and incorrect.


(27)         The petitioner filed a Motion for Reconsideration and basically the same arguments were reiterated to give chance to the court a quo to correct its mistakes.


(28)         The entire writings and annexes and exhibits mentioned or cited in the same Motion for Reconsideration are hereby adopted as part of this Petition for Certiorari and Prohibition.


(29)         Still, the Court a quo denied the motion for reconsideration although it expressed its appreciation of the same as a “well-written motion for reconsideration.”


The enumeration of facts was taken at face value by the Court of Appeals and the same Court of Appeals made a ruling based on the facts stated in the same enumeration.


The Office of the Solicitor General did not dispute any statement of facts stated above. 


So that there is substantially no issue with respect to facts.


The only issue is therefore clear to be legal: given the established circumstances, was it correct for the Court of Appeals Mindanao to make a legal opinion that the application for Temporary Restraining Order (TRO) and/or Writ of Preliminary Injunction (WPI)?




The Arguments Why
the CA-Mindanao
Committed Grave Abuse of Discretion



Does the doctrine of
injunction apply on this case?


            Let us tackle the first issue that is the doctrine that “injunction will not lie to enjoin a criminal prosecution because public interest requires that criminal acts be immediately investigated and prosecuted for the protection of the society.”


Does this doctrine really apply on the case at bar?


The answer is very clear to be “NO”.


Given the magnitude of substantial blatant defects enumerated, the instant case has become a clear act of PERSECUTION and NO LONGER PROSECUTION.


These blatant substantial defects in this case for the prosecution are very clear to be the following:


                                            i.            The fact that petitioner Rogelio Tano is not being charged in the Information for the complex crime of murder and frustrated murder;


                                          ii.            The fact that the case was dismissed against the only person named as being charged means that the case was already dismissed and can no longer be revived;


                                        iii.            The fact that the crime up for discussion already prescribed and can no longer be prosecuted under Article 91 of the Revised Penal Code;


                                        iv.            The fact that the Municipal Circuit Trial Court of Makilala that conducted the preliminary investigation recommended to the Provincial Fiscal the filing of complex crime of murders and frustrated murder recommend the filing of the same case ONLY AGAINST GAUDENCIO TRAVELLA and the petitioner, Rogelio Tano, was not included; and


                                          v.            The fact that it is very clear there is no probable cause because of the following:


a.      No corpus delicti -- in the sense that no medical certificates or medico-legal certificates or certificates of death were presented to prove the existence of deaths of persons;


b.     No police reports submitted to validate the claims that the ambush indeed occurred on October 8, 1982 and that the persons named as the victims indeed were victims of that ambush;


c.      All material witnesses except for Eduardo Honorario retracted and reversed their testimonies while all the rest did not appear at the “reinvestigation” conducted by the Office of the Provincial Prosecutor to reconfirm their testimonies;


d.     The numerous inconsistencies of the testimonies that Eduardo Honorario delivered in court as against the nature of man’s habit and against his affidavit executed almost twenty (20) years ago before the Philippine Constabulary headquarters in Amas, Kidapawan and his testimonies before MCTC Makilala Presiding Judge Elena B. De Leon.


So that it is very clear that the Court of Appeals-Mindanao committed grave abuse of discretion in not ruling that this case is exempt from the doctrine against interference in criminal prosecution.


Because it is clear that the instant case is exempt, let us examine whether this case presents a case of rights of the petitioner against warrants of arrest must be upheld over the criminal proceedings here.


It is very clear.  


The MCTC of Makilala did not resolve the issue of murders and frustrated murder as against petitioner Rogelio Tano as shown by Exhibit “E-154” and Exhibit “E-170.” 


As such, it can now rely on the presumption that the official functions were performed regularly, that the order of the MCTC of Makilala recommending the prosecution only of Gaudencio Travella is an order that was valid and legit.


A scan of the records—and even the answer or opposition or comment of the Office of the Solicitor General extant in the statements written in Resolution dated 07 April 2016—shows that the legitimacy and validity of the order of the MCTC of Makilala has never been challenged.


To understand the resolution does not need an expertise in the English language.


The clarity of the message can never be mistaken.


It was only Gaudencio Travella who was being charged with the complex crimes of murders and frustrated murder.


The same Resolution of the MCTC of Makilala is hereby pasted below in the next page in order to make it clear for justice to be seen:


reso of makilala mctc.JPG

And this resolution of the MCTC of Makilala that it did not charge Rogelio Tano was even confirmed by the criminal information that charged only Gaudencio Travella as quoted above would clearly show; Let a copy of the Information be pasted down here for clarity:


INFORMATION.JPG



All other points enumerated above, like the utter lack of corpus delicti, that there was lack of police reports to initially prove the existence of the ambush, and that the fact that all the witnesses except for Eduardo Honorario withdrew their testimonies.



No-pre-emption
that will take place


It is conjecture or a guessing game for the Court of Appeals to say that if they will rule on the application for injunctive reliefs then the CA will only pre-empt its own ruling in the main case.


The CA did not explain why and did not specify how.


To the contrary, the court a quo (RTC of Kidapawan) can remain fair and impartial despite the fact that it initially determined the issues competing.


Moreover, the justices of this Division of the CA-Mindano are duty-bound to rule upon the application for TRO and/or Preliminary injunction and then they can anyway submit the case back to re-raffle to determine what division it would now go.


Thus, it is very clear now that the Court of Appeals-Mindanao committed grave abuse of discretion tantamount to lack or excess of jurisdiction in refusing to rule on the application for TRO/WPI just because the warrant of arrest was already issued.


Blind-eye RTC


It is equally clear that the Court of Appeals–Mindanao committed grave abuse of discretion in ignoring the clear and undisputed facts that the court a quo, the RTC of Kidapawan, Branch 17, turned a blind eye on.


These are the circumstances that clearly needed the aid of the appellate court to stop the abuse by the lower court, to wit:


§  The fact that petitioner Rogelio Tano is not being charged in the Information for the complex crime of murder and frustrated murder;


§  The fact that the case was dismissed against the only person named as being charged means that the case was already dismissed and can no longer be revived;


§  The fact that the crime up for discussion already prescribed and can no longer be prosecuted under Article 91 of the Revised Penal Code;


§  The fact that the Municipal Circuit Trial Court of Makilala that conducted the preliminary investigation recommended to the Provincial Fiscal the filing of complex crime of murders and frustrated murder recommend the filing of the same case ONLY AGAINST GAUDENCIO TRAVELLA and the petitioner, Rogelio Tano, was not included; and


§  The fact that it is very clear there is no probable cause because of the following:


e.     No corpus delicti -- in the sense that no medical certificates or medico-legal certificates or certificates of death were presented to prove the existence of deaths of persons;


f.       No police reports submitted to validate the claims that the ambush indeed occurred on October 8, 1982 and that the persons named as the victims indeed were victims of that ambush;


g.      All material witnesses except for Eduardo Honorario retracted and reversed their testimonies while all the rest did not appear at the “reinvestigation” conducted by the Office of the Provincial Prosecutor to reconfirm their testimonies;


h.     The numerous inconsistencies of the testimonies that Eduardo Honorario delivered in court as against the nature of man’s habit and against his affidavit executed almost twenty (20) years ago before the Philippine Constabulary headquarters in Amas, Kidapawan and his testimonies before MCTC Makilala Presiding Judge Elena B. De Leon.

Application for TRO/WPI and/or SQAO



            The petitioner here is clearly entitled to a status quo ante order by directing the parties not to disturb the statuses of the case to the time that there was no warrant of arrest that was yet issued against petitioner Rogelio Tano.


The foregoing circumstances are too clear to be ignored.


As such, ignoring them made the CA-Mindanao guilty of grave abuse of discretion amounting to lack or excess of jurisdiction.


            And if the foregoing circumstances are clear, then it is equally clear that the right in esse or the unmistakable right here is the right to be free against the substantially defective information and not more on the probable cause issue.


            And because the warrant of arrest already issued, it is now prayed for that the Supreme Court issue a STATUS QUO ANTE ORDER to the period where no warrant of arrest was yet issued against petitioner Rogelio Tano.


            If the Supreme Court finds SQAO to be not proper, it is prayed that a preliminary injunction or a TRO be issued by the Supreme Court against the implementation of the warrant of arrest.


            For sure, a substantial defect in the narration of the accusation cannot be allowed to prejudice any accused because of the constitutional command that only a proof beyond reasonable doubt can convict him.


            To be clear, it is reiterated that the criminal information here being referred to does not mention that the petitioner is being accused by the public prosecutor.


The criminal information as the records of the case showed was filed at 9:00 a.m. of March 4, 1992 and it reads:


INFORMATION


The Undersigned accuses GAUDENCIA TRAVELLA of the crime MULTIPLE MURDER, committed as follows:


That at around 4:00 o’clock in the afternoon of October 8, 1982, at Barangay Esperanza, Municipality of Tulunan, Province of Cotabato, Philippines, the above-named accused in company with ROGELIO TANO, JESUS TANO, EDDIE TALAMERA, RENATO CASTELLANES and EDISON SUAY, conspiring, confederating together and mutually helping one another, with intent to kill, armed with assorted high powered firearms, did then and there, wilfully, unlawfully, feloniously and treacherously assault, attack and fire at a passing Volkswagen vehicle boarded by ERNESTO PANCHO, MONINA PANCHO, NESTOR TESARA, PATRICIA GRANITO and MICHELLE PANCHO, thereby hitting and inflicting mortal gunshot wounds to ERNESTO PANCHO, MONINA PANCHO, NESTOR TESARA and PATRICIA GRANITO which caused their instantaneous death and on the same occasion, seriously wounding MICHELLE PANCHO, accused having performed all the acts of execution which would produce the crime of Murder as a consequence, if not due to the timely medical intervention which saved the life of MICHELLE PANCHO.

With the aggravating circumstance of evident premeditation, and taking advantage of superior strength.

CONTRARY TO LAW.

Kidapawan, Cotabato, Philippines, November 29, 1991.


            If he is not charged, it is a blatant and unforgivable mistake of the court to issue a warrant of arrest to a person who is not charged with any crime.


            There is no issue that this warrant constitutes as a material and substantial invasion of the rights of the petitioner who is continuously experiencing that a Damocles’ dagger has been hanging over his head.


            Now, it is being argued that the Court can make its initial finding on the validity or invalidity of the present information for multiple murder and the act of making initial finding can be permitted to serve as a basis of resolving the issue of whether there is propriety of issuing a Temporary Restraining Order (TRO) or Writ of Preliminary Injunction.


            This is because the initial finding does not mean pre-empting what would be the final decision on the merits of the instant petition.


Hence, the application for SQAO or TRO or WPI is proper and timely.


            Let justice be done!


            Issue a SQAO or a TRO or WPI right away.


The Prayer



            WHEREFORE, it is respectfully prayed that the Honorable Supreme Court that it issue right away a STATUS QUO ANTE ORDER (SQAO) directing the parties to observe the status quo on the day when there was not year any warrant of arrest against him. 


In the alternative, it is also prayed of the Honorable Supreme Court to issue a Temporary Restraining Order (TRO) and/or a Writ of Preliminary Injunction enjoining the parties and the law enforcer from implementing the warrant of arrest issued by the RTC of Kidapawan, Branch 17, Criminal Case No. 2457 until after this case is resolved with finality.


            Finally, after due notice and hearing it is prayed that this Honorable Court direct the CA-Mindanao to resolve the issue of the application for TRO and/or WPI pending before the Court of Appeals-Mindanao.


            Other reliefs just and equitable under the premises are also prayed for.  


Respectfully submitted.


08 December 2016, Manila.


Causing Sabarre Castro Pelagio
Unit 1, 2368 JB Roxas St. corner Leon Guinto St., Malate, Manila
Emails: totocausing@yahoo.com, berteni.causing@gmail.com; Telephone No.: +632-3105521


By:


BERTENI CATALUÑA CAUSING, CE
IBP No. 972694/ 04-12-2015 / Manila IV
PTR No. 4889732 / 04-12-2015 / Manila
Roll No. 60944
MCLE No. IV – 0007338 issued 10 August 2012
(Valid from 15 April 2013 until 14 April 2016)
MCLE No. V – 0013036 issued 13 January 2016
(Valid from 15 April 2016 until 14 April 2019)
Cc:

OFFICE OF THE SOLICITOR GENERAL
134 Amorsolo St., Legaspi Village, Makati

COURT OF APPEALS-MINDANAO
YMCA Bldg., Julio Pacana St.,
Cagayan de Oro City.

REGIONAL TRIAL COURT OF KIDAPAWAN
Branch 17, Kidapawan City


EXPLANATION


            Lack of personnel and distance compelled service and filing by registered mails.


BERTENI CATALUÑA CAUSING, CE





x-----------------------------------------------x
Republic of the Philippines                      )
City of Manila                                              )SC


Verification and Certification


            I, BERTENI CATALUÑA CAUSING, of legal age, single, of Unit 1, No. 2368 Leon Guinto St. corner JB Roxas St., Malate, Manila, after having been sworn to in accordance with law, do hereby depose and state:

            That I have been duly authorized in a Special Power of Attorney to sign this Verification and Certification for and on behalf of ROGELIO T. TANO;

            That I have prepared and duly understood this Petition and the contents thereof are true and correct to my knowledge and based on authentic records;

            That I certify that I have not filed in any other venue and jurisdiction any action having similar parties, issues, applicable laws, and reliefs prayed, except for the pending actions in the court of                                                                                                                                                                                                                                                                                    origin; and

            That should I learn of one such action I undertake to inform the Court in five (5) days from knowledge.

            IN WITNESS WHEREOF, I sign this Verification and Certification on __ December 2016 in Manila.



BERTENI CATALUÑA CAUSING
Integrated Bar of the Philippines ID No. 60944

            SUBSCRIBED AND SWORN TO before me on __ December 2016 in Manila, affiant exhibited his competent evidence of identity written below his name above.

Doc. No.:       ____;
Page No.:      ____;
Book No.:     ____;
Series of 2016.


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