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:
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:
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
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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