EVIDENCE DOCUMENTARY EVIDENCEG.R. No. 83377 February 9, 1993BASILIO DE VERA, LUIS DE VERA, FELIPE DE VERA, HEIRS OF EUSTAQUIA DE VERA-PAPA represented by GLICERIA PAPA-FRANCISCO, et al.,petitioners,vs.SPOUSES MARIANO AGUILAR and LEONA V. AGUILAR,respondents.Pablo M. Gancayaco for petitioners.De Mesa, Villarica & Associates for respondents.CAMPOS, JR.,J.:This is a petition for review oncertiorariof the decision*of the Court of Appeals dated November 27, 1987 in CA-GR CV No. 07448 entitled, "Basilio de Vera, Luis de Vera, Felipe de Vera, Heirs of Eustaquia de Vera-Papa, represented by Gliceria Papa-Francisco, and Heirs of Maria de Vera-Torres, represented by Luis V. Torres, plaintiffs-appellees versus Spouses Mariano Aguilar and Leona V. Aguilar, defendants-appellants", which reversed the decision**of the Regional Trial Court of Bulacan, Third Judicial Region, Branch 14, for failure of petitioners to prove the loss or destruction of the original deed of sale and of all its duplicate original copies.The undisputed facts are as follows:Petitioners Basilio, Luis, Felipe, Eustaquia and Maria, all surnamed de Vera and respondent Leona, married to respondent Mariano Aguilar, are the children and heirs of the late Marcosa Bernabe who died on May 10, 1960. In her lifetime, Marcosa Bernabe owned the disputed parcel of land situated in Camalig, Meycauayan, Bulacan, with an area of 4,195 square meters, designated as Cadastral Lot No. 3621, Cad. 337, Case No. 4, Meycauayan Cadastre.The disputed property was mortgaged by petitioners Basilio and Felipe de Vera to a certain Atty. Leonardo Bordador. When the mortgage had matured, the respondents redeemed the property from Atty. Leonardo Bordador and in turn Marcosa Bernabe sold the same to them as evidenced by a deed of absolute sale dated February 11, 1956.On February 13, 1956, the respondents registered the deed with the Registry of Deeds of Bulacan resulting in the cancellation of the tax declaration in the name of Marcosa Bernabe and the issuance of another in the name of the Aguilars. Since then and up to the present, the Aguilars have been paying taxes on the land.On July 20, 1977, respondent Mariano Aguilar was issued a free patent to the land on the basis of which Original Certificate of Title No. P-1356(M) was issued in his name.On September 1, 1980, the petitioners wrote to the respondents claiming that as children of Marcosa Bernabe, they were co-owners of the property and demanded partition thereof on threats that the respondents would be charged with perjury and/or falsification. The petitioners also claimed that the respondents had resold the property to Marcosa Bernabe on April 28, 1959.On September 27, 1980, the respondents wrote in reply to the petitioners that they were the sole owners of the disputed parcel of land and denied that the land was resold to Marcosa Bernabe.True to petitioners' threat, they filed a falsification case against the respondents. However, on March 31, 1981, Assistant Provincial Fiscal Arsenio N. Mercado of Bulacan recommended dismissal of the charge of falsification of public document against the respondents for lack of aprima faciecase.On March 26, 1981, petitioners filed a suit for reconveyance of the lot covered by Original Certificate of Title No. P-1356(M).On July 31, 1985, the trial court rendered its decision***the dispositive portion of which reads as follows:WHEREFORE, judgment is hereby rendered ordering defendants:1. To reconvey the property in question to the plaintiffs;2. To pay plaintiffs P10,000.00 as litigation expenses;3. To pay plaintiffs P5,000.00 as exemplary damages;4. To pay P10,000.00 as attorney's fees.SO ORDERED.1In ruling in favor of the petitioners, the trial court admitted, over the objection of the respondents, Exhibit A purporting to be a xeroxed copy of an alleged deed of sale executed on April 28, 1959 by the respondents selling, transferring and conveying unto Marcosa Bernabe the disputed parcel of land for and in consideration of P1,500.00.Not contented with the decision, respondents appealed to the Court of Appeals contending that they never sold back to Marcosa Bernabe the disputed parcel of land. Furthermore, respondents contended that since the petitioners have failed to produce the original of the alleged deed of sale dated April 28, 1959, the same was not the best evidence of the alleged sale hence it should have been excluded and should not have been accorded any evidentiary value. On the other hand, the petitioners claimed that the existence of the document of sale dated April 28, 1959 had been duly established by the testimony of the notary public before whom it was acknowledged and by Luis de Vera who was present during its execution and that the loss of the original document had been proven by the testimony of the representatives of the offices of the National Archives and the Provincial Assessor of Bulacan.On November 29, 1987, the Court of Appeals rendered its decision reversing the trial court's decision. It found that the loss or destruction of the original deed of sale has not been duly proven by the petitioners. Hence, secondary evidence,i.e., presentation of the xeroxed copy of the alleged deed of sale is inadmissible.Hence this petition.The crux of this case is whether or not the petitioners have satisfactorily proven the loss of the original deed of sale so as to allow the presentation of the xeroxed copy of the same.We rule in the negative.Section 4 of Rule 130 (now Section 5, Rule 130) of the Rules of Court on Secondary Evidence states:Sec. 4. Secondary evidence when original is lost or destroyed. When the original writing has been lost or destroyed, or cannot be produced in court, upon proof of its execution and loss or destruction, or unavailability, its contents may be proved by a copy, or by a recital of its contents in some authentic document, or by the recollection of witnesses.Secondary evidence is admissible when the original documents were actually lost or destroyed. But prior to the introduction of such secondary evidence, the proponent must establish the former existence of the instrument. The correct order of proof is as follows:Existence;execution;loss;contentsalthough this order may be changed if necessary in the discretion of the court. The sufficiency of proof offered as a predicate for the admission of an alleged lost deed lies within the judicial discretion of the trial court under all the circumstances of the particular case.2A reading of the decision of the trial court shows that it merely ruled on the existence and due execution of the alleged deed of sale dated April 28, 1959. It failed to look into the facts and circumstances surrounding the loss or destruction of the original copies of the alleged deed of sale.In the case at bar, theexistenceof an alleged sale of a parcel of land was proved by the presentation of a xeroxed copy of the alleged deed of absolute sale.In establishing theexecutionof a document the same may be established by the person or persons who executed it, by the person before whom its execution was acknowledged, or by any person who was present and saw it executed or who, after its execution, saw it and recognized the signatures; or by a person to whom the parties to the instrument had previously confessed the execution thereof.3We agree with the trial court's findings that petitioners have sufficiently established the due execution of the alleged deed of sale through the testimony of the notary public to wit:Preponderance of evidence clearly disclosed the facts that Atty. Ismael Estela prepared Exhibit A. Atty. Emiliano Ibasco, Jr. positively identified the signatures appearing therein to be that (sic) of the spouses and witnesses Luis de Vera and Ismael Estela, in his capacity as Notary Public who ratified the document.4After the due execution of the document has been established, it must next be proved that said document has been lost or destroyed. The destruction of the instrument may be proved by any person knowing the fact. The loss may be shown by any person who knew the fact of its loss, or by any one who had made, in the judgment of the court, a sufficient examination in the place or places where the document or papers of similar character are usually kept by the person in whose custody the document lost was, and has been unable to find it; or who has made any other investigation which is sufficient to satisfy the court that the instrument is indeed lost.5However, all duplicates or counterparts must be accounted for before using copies. For, since all the duplicates or multiplicates are parts of the writing itself to be proved, no excuse for non-production of the writing itself can be regarded as established until it appears that all of its parts are unavailable (i.e. lost, retained by the opponent or by a third person or the like).6In the case at bar, Atty. Emiliano Ibasco, Jr., notary public who notarized the document testified that the alleged deed of sale has about four or five original copies.7Hence, all originals must be accounted for before secondary evidence can be given of any one. This petitioners failed to do. Records show that petitioners merely accounted for three out of four or five original copies.In reversing the trial court, the respondent Court of Appeals considered the following points:Asked on the witness stand where the original of the document (Exhibit A) was, plaintiff-appellee Luis de Vera answered that it was with the Provincial Assessor in Malolos, Bulacan, whereupon the appellees reserved its (sic) right to present it in evidence (p. 11, tsn., August 11, 1981, Steno, Tecson). The same question propounded to the same witness at the next hearing, he replied that in the early part of 1976 his sister Maria borrowed from him the original document and a certified true copy thereof and brought them to the Office of the Register of Deeds in Malolos "for the purpose of having it registered;" and that when she returned she told him that the original copy of the document was submitted to that office "and it (the property) was transferred in the name of Marcosa Bernabe instead of Mariano Aguilar" (p. 8, tsn., December 10, 1981, Steno, Crisostomo; p. 9, tsn., Mar. 16, 1982, Steno, Vallarta).Indeed, upon the appellees' own evidence the original of the deed of sale in question, a purported xerox copy and certified true copy of which are marked as Exhibits A and B, has not been lost or destroyed. It was submitted to the Office of the Register of Deeds of Malolos for registration. The appellees, therefore, should have asked the office to produce it in court and if it could not be produced for one reason or another should have called the Register of Deeds or his representative to explain why. That they failed to do. The loss or destruction of the original of the document in question has not, therefore, been established. Hence, secondary evidence of it is inadmissible . . . .Neither did the testimony of notary public Ibasco, Jr. to the effect that he did not have a copy of the deed of sale in question because his files were burned when his office at Ronquillo Street, Manila was gutted by fire in 1971 and 1972 (p. 4, tsn., November 10, 1981, Steno, Crisostomo) establish the loss or destruction of the original document in question. What was lost or destroyed in the custody of Atty. Ibasco, Jr. was but one of the duplicate original copies on file with him. Nor did the testimony of Hipolito Timoteo, representative of the Assessor's Office of Bulacan, to the effect that he failed to see the deed of absolute sale annotated on the simple copy of tax declaration No. 15412 (p. 7, tsn., Aug. 12, 1982, Steno, Vallarta) and of David Montenegro, Jr. of the National Archives to the effect that his office had no copy of the document in question because the notary public might not have submitted a copy thereof; or that it was lost or destroyed during the transmittal; and that most of the record before 1960 were destroyed by termites (pp. 8-12, tsn., Oct. 5, 1982, Steno, Tecson), prove loss or destruction of the original and of all the duplicate original copies of the document in question.8We find no cogent reason to rule otherwise.WHEREFORE, the decision of the Court of Appeals dated November 27, 1987 is hereby AFFIRMED.SO ORDERED.[G.R. No. 150905.September 23, 2003]CITIBANK, N.A. MASTERCARD,petitioner, vs.EFREN S. TEODORO,respondent.D E C I S I O NPANGANIBAN,J.:Before secondary evidence may be admitted to prove the contents of original documents, the offeror must prove the due execution and the subsequent loss or unavailability of the original.The CaseThe Petition for Review[1]before us assails the July 31, 2001 Decision[2]and the November 22, 2001 Resolution[3]of the Court of Appeals (CA) in CA-GR SP No. 62891.The dispositive portion of the challenged Decision reads as follows:WHEREFORE, premises considered, thePetitionisGRANTED; and theDecisionsof the trial courts are herebyREVERSEDandSET ASIDE. No costs.[4]The assailed Resolution denied petitioners Motion for Reconsideration.The FactsPetitioner operates a credit card system through which it extends credit accommodations to its cardholders for the purchase of goods and services from its member establishments.The purchases are later on paid for by cardholders upon receipt of the billings or statements of account from the company.Respondent Efren S. Teodoro was one such cardholder.On December 14, 1990, he applied for membership with petitioner.After his application was approved, he was issued Citibank, N.A. Mastercard No. 5423-3920-4457-7009.Under the terms and conditions governing the use of the Citibank credit card, the cardholder undertakes to pay all the purchases made using the card within the period indicated on the statement of account or within thirty (30) days from the date or dates of its use.Charges that remain unpaid within the period fixed in the monthly statement of account shall earn interest at the rate of 3.5 percent per month plus a penalty fee equivalent to 5 percent of the amount due for every month or even a fraction of a months delay.Respondent made various purchases through his credit card.Accordingly, he was billed by petitioner for those purchases, for which he tendered various payments.Petitioner claims that as of January 20, 1995, the obligations of respondent stood at P191,693.25, inclusive of interest and service charges.Several times it demanded payment from him, but he refused to pay, claiming that the amount demanded did not correspond to his actual obligations.His refusal prompted petitioner to file a Complaint for collection on January 25, 1996 before the Regional Trial Court (RTC) of Makati City.The case was docketed as Civil Case No. 96-092 and raffled to Branch 133.The RTC, in an Order dated April 23, 1996, dismissed the Complaint for lack of jurisdiction over the amount involved.The case was then transferred to the Metropolitan Trial Court (MTC) of Makati City, where it was docketed as Civil Case No. 51586 and raffled to Branch 66.During the trial, petitioner presented several sales invoices or charge slips, which added up to only P24,388.36.Although mere photocopies of the originals, the invoices were marked in evidence as Exhibits F to F-4.Because all these copies appeared to bear the signatures of respondent, the trial court deemed them sufficient proof of his purchases with the use of the credit card.Accordingly, the MTC in its July 25, 2000 Decision[5]ordered him to pay petitioner the amount of P24,388.36 plus interest and penalty fee.The material portion of the Decision reads:[Petitioner] is claiming that [respondent] made use of its credit card.And as of January 20, 1995, [respondents] obligation to [petitioner] ballooned to the sum of P191,693.25.This is clear according to [petitioner] as shown by the Statement of Accounts.To the mind of this Court, the Statement of Account alone will not prove that [respondent] has an outstanding obligation to [petitioner] in the amount of P191,693.95.This must be substantiated by the Sales Invoices which unearthed the purchases made by [respondent] when he availed himself of the credit card of [petitioner].While it is true that [petitioner] has offered the Sales Invoices (Exhibits F, F-1, F-4) to show the purchases made by [respondent], it is equally true also that adding all the amount in said invoices, the sum of P191,693.95 which according to [petitioner] is the outstanding obligation of [respondent], is hardly met.[Petitioner] even admitted that it could not produce all the invoices.Without the other Sales Invoices, there is a cloud of doubt hovering over the claim of [petitioner] to [respondent].In fact, summing up all the amount[s] indicated in the aforesaid Sales Invoices the fact that the [respondent] has incurred to [petitioner] an obligation in the amount of P24,388.36 as a result of the formers availment of the credit card of the latter.It is elementary procedure that [petitioner] must prove [its] case with preponderance of evidence.Without all the other Sales Invoices to uncover the purchases made by [respondent] when he used the credit card of [petitioner], it is undeniable x x x that [petitioner] is caught in the web of doubt with respect to the accuracy of its claim to the [respondent].WHEREFORE, premises considered, this Court hereby renders judgment as follows:1.Ordering [respondent] to pay [petitioner] P24,388.36 with an interest of 3.5% and a penalty fee equivalent to another 5% of the amount due for every month due or a fraction of a months delay starting February 21, 1995 until the entire obligation is fully paid;2.Ordering [respondent] to pay [petitioner] 25% of any and all amounts due and payable as agreed attorneys fees plus cost of suit.[6]Thereafter, respondent appealed the MTC judgment to the RTC of Makati City, where the appeal was docketed as Civil Case No. 00-1051 and raffled to Branch 146.In its October 30, 2000 Decision,[7]the RTC affirmed the MTC Decisionin toto.Ruling of the Court of AppealsThe focal issue of the case according to the CA was whether the photocopies of the sales invoices or charge slips, marked as Exhibits F to F-4, were competent proofs of the obligations of respondent.These were the only evidence presented by petitioner that could prove the actual amount of obligation he had incurred in favor of the former.In reversing the trial courts, the CA ruled that this evidence was insufficient to prove any liability on respondents part.According to Sections 3 and 5 of Rule 130 of the Rules of Court, whenever the subject of inquiry is the content of a document, its original must be produced, as it is the best evidence to prove such content.Secondary evidence, like the subject photocopies, is inadmissible.It will be admissible only if the offeror proves (a) any of the exceptions enumerated in Section 3 and (b) the conditions for its admissibility set forth in Section 5 of Rule 130.For secondary evidence to be admissible, there must be satisfactory proof of (1) the due execution of the original; (2) the originals loss, destruction or unavailability that is not due to the offerors bad faith; and (3) reasonable diligence and good faith in the search for or attempt to produce the original.Although petitioner was able to prove the existence of the original sales invoices, it failed to prove their due execution or to account for their loss or unavailability.Hence, this Petition.[8]IssuesPetitioner raises the following issues for our consideration:I.Whether or not the Court of Appeals erred in reversing and setting aside the decision of the trial courts for insufficiency of evidence to support its findings.II.Whether or not the Court of Appeals erred in holding that petitioner failed to prove the due execution and the cause of the unavailability and non-production of the charge slips marked in evidence as Exhibits F to F-4.[9]In brief, the main issue boils down to whether the photocopies of the sales invoices or charge slips marked during trial as Exhibits F to F-4 are admissible in evidence.The Courts RulingThe Petition has no merit.Main Issue:Admissibility of PhotocopiesPetitioner contends that the testimony[10]of its principal witness - Mark Hernando, assistant manager of Citibank, N.A. Mastercard -- proves the following:a) the existence or due execution of the original sales invoices which sufficiently proved respondents liability of P24,388.36;b) the loss or unavailability of the original sales invoices; andc) petitioners reasonable diligence and good faith in the search for or attempt to produce the originals.It further argues that Hernando competently identified the signatures of respondent on the sales invoices, having recognized them as identical to the signature on the latters credit card application form.On the other hand, respondent maintains that petitioner failed to prove the due execution of the sales invoices.According to him, Hernando was not privy to such execution and could not have properly or competently declared that the signatures on the invoices and on the application form belonged to the former.The latter was not the person before whom the application form was signed, executed or acknowledged; he was not even present then.As to the sales invoices and respondents alleged signatures thereon, he saw them only after the Complaint had been filed in court or long after those invoices had been executed.He was therefore not competent to identify the signatures.Because Hernandez had not actually witnessed the execution of the sales invoices and the application form, respondent concludes that petitioner failed to observe Section 5 of Rule 130 of the Rules of Court, which provides that the contents of the original may be proven by the testimony of witnesses.Finally, respondent contends that the alleged loss or unavailability of the original sales invoices was not sufficiently established.Allegedly, Hernandez had requested the originals from Equitable Credit Card Network, Inc., but failed to show in court that he had followed up his request as advised by another witness, Zen Hipolito.Therefore, the requirement of reasonable diligence and good faith in the search for or attempt to produce the originals was not satisfied, because he had shown no proof of having followed up the request.The burden of proof rests upon petitioner, as plaintiff, to establish its case based on a preponderance of evidence. It is well-settled that in civil cases, the party that alleges a fact has the burden of proving it.[11]Petitioner failed to prove that respondent had an obligation in the principal amount ofP24,388.36, because the photocopies of the original sales invoices it had presented in court were inadmissible in evidence.Moreover, had they been admissible, they would still have had little probative value.[12]The original copies of the sales invoices are the best evidence to prove the alleged obligation.Photocopies thereof are mere secondary evidence.As such, they are inadmissible because petitioner, as the offeror, failed to prove any of the exceptions provided under Section 3[13]of Rule 130 of the Rules of Court, as well s the conditions of their admissibility.Because of the inadmissibility of the photocopies in the absence of the originals, respondents obligation was not established.Section 5 of Rule 130 of the Rules of Court states:SEC. 5.When original document is unavailable.When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated.Applying the above Rule to the present case, before a party is allowed to adduce secondary evidence to prove the contents of the original sales invoices, the offeror must prove the following: (1) the existence or due execution of the original; (2) the loss and destruction of the original or the reason for its nonproduction in court; and (3) on the part of the offeror, the absence of bad faith to which the unavailability of the original can be attributed.[14]The correct order of proof is as follows:existence, execution, loss, and contents.At the sound discretion of the court, this order may be changed if necessary.[15]In the present case, theexistenceof the original sales invoices was established by the photocopies and the testimony of Hernandez.Petitioner, however, failed to prove that the originals had been lost or could not be produced in court after reasonable diligence and good faith in searching for them.Indeed, the loss of the originals and reasonable diligence in the search for them were conditions that were not met, because the sales invoices might have been found by Equitable.Hernandez, testifying that he had requested the originals from Equitable, failed to show that he had subsequently followed up the request.[16]Finally, when more than one original copy exists, it must appear thatallof them have been lost, destroyed, or cannot be produced in court before secondary evidence can be given of any one.A photocopy may not be used without accounting for the other originals.[17]InSantos v. Santos[18]the Court upheld the pronouncement of the CA that before the appellees therein could be allowed to adduce secondary evidence to prove the contents of the original, they had to prove -- with the requisite quantum of evidence -- the loss, the destruction or the unavailability ofalloriginal copies of the document.In the present case, triplicates were produced, although the cardholder signed the sales invoice only once.[19]During the trial, Hernandez explained that an original copy had gone to respondent, another to the merchant, and still another to petitioner.[20]Each of these three copies is regarded as an original in accordance with Section 4 (b) of Rule 130 of the Rules of Court.[21]Petitioner failed to show that all three original copies were unavailable, and that due diligence had been exercised in the search for them.WHEREFORE, the Petition isDENIED.Costs against petitioner.SO ORDERED.G.R. Nos. 108280-83 November 16, 1995ROMEO SISON, NILO PACADAR, JOEL TAN, RICHARD DE LOS SANTOS, and JOSELITO TAMAYO,petitioners,vs.PEOPLE OF THE PHILIPPINES and COURT OF APPEALS,respondents.G.R. Nos. 114931-33 November 16, 1995THE PEOPLE OF THE PHILIPPINES,plaintiff-appellee,vs.ANNIE FERRER, accused, ROMEO SISON, NILO PACADAR, JOEL TAN, RICHARD DE LOS SANTOS, and JOSELITO TAMAYO,accused-appellants.PUNO,J.:The case before us occurred at a time of great political polarization in the aftermath of the 1986 EDSA Revolution. This was the time when the newly-installed government of President Corazon C. Aquino was being openly challenged in rallies, demonstrations and other public fora by "Marcos loyalists," supporters of deposed President Ferdinand E. Marcos. Tension and animosity between the two (2) groups sometimes broke into violence. On July 27, 1986, it resulted in the murder of Stephen Salcedo, a known "Coryista."From August to October 1986, several informations were filed in court against eleven persons identified as Marcos loyalists charging them with the murder of Salcedo. Criminal Case No. 86-47322 was filed against Raul Billosos y de Leon and Gerry Nery y Babazon; Criminal Case No. 86-47617 against Romeo Sison y Mejia, Nilo Pacadar y Abe and Joel Tan y Mostero; Criminal Case No. 86-47790 against Richard de los Santos y Arambulo; Criminal Case No. 86-48538 against Joselito Tamayo y Ortia; and Criminal Case No. 86-48931 against Rolando Fernandez y Mandapat. Also filed were Criminal Cases Nos. 86-49007 and 86-49008 against Oliver Lozano and Benjamin Nuega as well as Annie Ferrer charging them as accomplices to the murder of Salcedo.The cases were consolidated and raffled to the Regional Trial Court, Branch XLIX, Manila. All of the accused pleaded not guilty to the charge and trial ensued accordingly. The prosecution presented twelve witnesses, including two eyewitnesses, Ranulfo Sumilang and Renato Banculo, and the police officers who were at the Luneta at the time of the incident. In support of their testimonies, the prosecution likewise presented documentary evidence consisting of newspaper accounts of the incident and various photographs taken during the mauling.The prosecution established that on July 27, 1986, a rally was scheduled to be held at the Luneta by the Marcos loyalists. Earlier, they applied for a permit to hold the rally but their application was denied by the authorities. Despite this setback, three thousand of them gathered at the Rizal Monument of the Luneta at 2:30 in the afternoon of the scheduled day. Led by Oliver Lozano and Benjamin Nuega, both members of the Integrated Bar of the Philippines, the loyalists started an impromptu singing contest, recited prayers and delivered speeches in between. Colonel Edgar Dula Torres, then Deputy Superintendent of the Western Police District, arrived and asked the leaders for their permit. No permit could be produced. Colonel Dula Torres thereupon gave them ten minutes to disperse. The loyalist leaders asked for thirty minutes but this was refused. Atty. Lozano turned towards his group and said "Gulpihin ninyo ang lahat ng mga Cory infiltrators." Atty. Nuega added "Sige, sige gulpihin ninyo!" The police then pushed the crowd, and used tear gas and truncheons to disperse them. The loyalists scampered away but some of them fought back and threw stones at the police. Eventually, the crowd fled towards Maria Orosa Street and the situation later stabilized.1At about 4:00 p.m., a small group of loyalists converged at the Chinese Garden, Phase III of the Luneta. There, they saw Annie Ferrer, a popular movie starlet and supporter of President Marcos, jogging around the fountain. They approached her and informed her of their dispersal and Annie Ferrer angrily ordered them "Gulpihin ninyo and mga Cory hecklers!" Then she continued jogging around the fountain chanting "Marcos pa rin, Marcos pa rin, Pabalikin si Marcos, Pabalikin si Marcos, Bugbugin ang mga nakadilaw!" The loyalists replied "Bugbugin!" A few minutes later, Annie Ferrer was arrested by the police. Somebody then shouted "Kailangang gumanti, tayo ngayon!" A commotion ensued and Renato Banculo, a cigarette vendor, saw the loyalists attacking persons in yellow, the color of the "Coryistas." Renato took off his yellow shirt.2He then saw a man wearing a yellow t-shirt being chased by a group of persons shouting "Iyan, habulin iyan. Cory iyan!" The man in the yellow t-shirt was Salcedo and his pursuers appeared to be Marcos loyalists. They caught Salcedo and boxed and kicked and mauled him. Salcedo tried to extricate himself from the group but they again pounced on him and pummelled him with fist blows and kicks hitting him on various parts of his body. Banculo saw Ranulfo Sumilang, an electrician at the Luneta, rush to Salcedo's aid. Sumilang tried to pacify the maulers so he could extricate Salcedo from them. But the maulers pursued Salcedo unrelentingly, boxing him with stones in their fists. Somebody gave Sumilang a loyalist tag which Sumilang showed to Salcedo's attackers. They backed off for a while and Sumilang was able to tow Salcedo away from them. But accused Raul Billosos emerged from behind Sumilang as another man boxed Salcedo on the head. Accused Richard de los Santos also boxed Salcedo twice on the head and kicked him even as he was already fallen.3Salcedo tried to stand but accused Joel Tan boxed him on the left side of his head and ear.4Accused Nilo Pacadar punched Salcedo on his nape, shouting: "Iyan, Cory Iyan. Patayin!"5Sumilang tried to pacify Pacadar but the latter lunged at the victim again. Accused Joselito Tamayo boxed Salcedo on the left jaw and kicked him as he once more fell. Banculo saw accused Romeo Sison trip Salcedo and kick him on the head, and when he tried to stand, Sison repeatedly boxed him.6Sumilang saw accused Gerry Neri approach the victim but did not notice what he did.7Salcedo somehow managed to get away from his attackers and wipe off the blood from his face. He sat on some cement steps8and then tried to flee towards Roxas boulevard to the sanctuary of the Rizal Monument but accused Joel Tan and Nilo Pacadar pursued him, mauling Sumilang in the process. Salcedo pleaded for his life exclaiming "Maawa na kayo sa akin. Tulungan ninyo ako." He cried: "Pulis, pulis. Wala bang pulis?"9The mauling resumed at the Rizal Monument and continued along Roxas Boulevard until Salcedo collapsed and lost consciousness. Sumilang flagged down a van and with the help of a traffic officer, brought Salcedo to the Medical Center Manila but he was refused admission. So they took him to the Philippine General Hospital where he died upon arrival.Salcedo died of "hemorrhage, intracranial traumatic." He sustained various contusions, abrasions, lacerated wounds and skull fractures as revealed in the following post-mortem findings:Cyanosis, lips, and nailbeds.Contused-abrasions: 6.0 x 2.5 cm., and 3.0 x 2.4 cm., frontal region, right side; 6.8 x 4.2 cm., frontal region, left side; 5.0 x 4.0 cm., right cheek; 5.0 x 3.5 cm., face, left side; 3.5 x 2.0 cm., nose; 4.0 x 2.1 cm., left ear, pinna; 5.0 x 4.0 cm. left suprascapular region; 6.0 x 2.8 cm., right elbow.Abrasions: 4.0 x 2.0 cm., left elbow; 2.0 x 1.5 cm., right knee.Lacerated wounds: 2.2 cm., over the left eyebrow; 1.0 cm., upper lip.Hematoma, scalp; frontal region, both sides; left parietal region; right temporal region; occipital region, right side.Fractures, skull; occipital bone, right side; right posterior cranial fossa; right anterior cranial fossa.Hemorrhage, subdural, extensive.Other visceral organs, congested.Stomach, about 1/2 filled with grayish brown food materials and fluid.10The mauling of Salcedo was witnessed by bystanders and several press people, both local and foreign. The press took pictures and a video of the event which became front-page news the following day, capturing national and international attention. This prompted President Aquino to order the Capital Regional Command and the Western Police District to investigate the incident. A reward of ten thousand pesos (P10,000.00) was put up by Brigadier General Alfredo Lim, then Police Chief, for persons who could give information leading to the arrest of the killers.11Several persons, including Ranulfo Sumilang and Renato Banculo, cooperated with the police, and on the basis of their identification, several persons, including the accused, were apprehended and investigated.For their defense, the principal accused denied their participation in the mauling of the victim and offered their respective alibis. Accused Joselito Tamayo testified that he was not in any of the photographs presented by the prosecution12because on July 27, 1986, he was in his house in Quezon City.13Gerry Neri claimed that he was at the Luneta Theater at the time of theincident.14Romeo Sison, a commercial photographer, was allegedly at his office near the Luneta waiting for some pictures to be developed at that time.15He claimed to be afflicted with hernia impairing his mobility; he cannot run normally nor do things forcefully.16Richard de los Santos admits he was at the Luneta at the time of the mauling but denies hitting Salcedo.17He said that he merely watched the mauling which explains why his face appeared in some of the photographs.18Unlike the other accused, Nilo Pacadar admits that he is a Marcos loyalist and a member of the Ako'y Pilipino Movement and that he attended the rally on that fateful day. According to him, he saw Salcedo being mauled and like Richard de los Santos, merely viewed the incident.19His face was in the pictures because he shouted to the maulers to stop hitting Salcedo.20Joel Tan also testified that he tried to pacify the maulers because he pitied Salcedo. The maulers however ignored him.21The other accused, specifically Attys. Lozano and Nuega and Annie Ferrer opted not to testify in their defense.On December 16, 1988, the trial court rendered a decision finding Romeo Sison, Nilo Pacadar, Joel Tan, Richard de los Santos and Joselito Tamayo guilty as principals in the crime of murder qualified by treachery and sentenced them to 14 years 10 months and 20 days ofreclusion temporalas minimum to 20 years ofreclusion temporalas maximum. Annie Ferrer was likewise convicted as an accomplice. The court, however, found that the prosecution failed to prove the guilt of the other accused and thus acquitted Raul Billosos, Gerry Nery, Rolando Fernandez, Oliver Lozano and Benjamin Nuega. The dispositive portion of the decision reads as follows:WHEREFORE, judgement is hereby rendered in the aforementioned cases as follows:1. In "People versus Raul Billosos and Gerry Nery," Criminal Case No. 86-47322, the Court finds that the Prosecution failed to prove the guilt of the two (2) Accused beyond reasonable doubt for the crime charged and hereby acquits them of said charge;2. In "People versus Romeo Sison, et al.," Criminal Case No. 86-47617, the Court finds the Accused Romeo Sison, Nilo Pacadar and Joel Tan, guilty beyond reasonable doubt, as principals for the crime of Murder, defined in Article 248 of the Revised Penal Code, and, there being no other mitigating or aggravating circumstances, hereby imposes on each of them an indeterminate penalty of from FOURTEEN (14)YEARS, TEN (10) MONTHS and TWENTY (20) DAYS, ofReclusion Temporal, as minimum, to TWENTY (20) DAYS, ofReclusion Temporal, as minimum, to TWENTY (20) YEARS ofReclusion Temporal, as Maximum;3. In "People versus Richard de los Santos," Criminal Case No. 86-47790, the Court finds the Accused Richard de los Santos guilty beyond reasonable doubt as principal for the crime of Murder defined in Article 248 of the Revised Penal Code and, there being no other extenuating circumstances, the Court hereby imposes on him an indeterminate penalty of from FOURTEEN (14) YEARS, TEN (10) MONTHS and TWENTY (20) DAYS ofReclusion Temporal, as Minimum, to TWENTY (20) YEARS ofReclusion Temporalas Maximum;4. In "People versus Joselito Tamayo," Criminal Case No. 86-48538the Court finds the Accused guilty beyond reasonable doubt as principal, for the crime of "Murder" defined in Article 248 of the Revised Penal Code and hereby imposes on him an indeterminate penalty of from FOURTEEN (14) YEARS, TEN (10) MONTHS and TWENTY (20) DAYS ofReclusion Temporal, as Minimum, to TWENTY (20) YEARS ofReclusion Temporal, as Maximum;5. In "People versus Rolando Fernandez," Criminal Case No. 86-4893l, the Court finds that the Prosecution failed to prove the guilt of the Accused for the crime charged beyond reasonable doubt and hereby acquits him of said charge;6. In "People versus Oliver Lozano, et al.," Criminal Case No. 86-49007, the Court finds that the Prosecution failed to prove the guilt of the Accused beyond reasonable doubt for the crime charged and hereby acquits them of said charge;7. In "People versus Annie Ferrer," Criminal Case No. 86-49008, the Court finds the said Accused guilty beyond reasonable doubt, as accomplice to the crime of Murder under Article 18 in relation to Article 248 of the Revised Penal Code and hereby imposes on her an indeterminate penalty of NINE (9) YEARS and FOUR (4) MONTHS ofPrision Mayor, as Minimum to TWELVE (12) YEARS, FIVE (5) MONTHS and ELEVEN (11) DAYS ofReclusion Temporal, as Maximum.The Accused Romeo Sison, Nilo Pacadar, Richard de los Santos, Joel Tan, Joselito Tamayo and Annie Ferrer are hereby ordered to pay, jointly and severally, to the heirs of Stephen Salcedo the total amount of P74,000.00 as actual damages and the amount of P30,000.00 as moral and exemplary damages, and one-half (1/2) of the costs of suit.The period during which the Accused Nilo Pacadar, Romeo Sison, Joel Tan, Richard de los Santos and Joselito Tamayo had been under detention during the pendency of these cases shall be credited to them provided that they agreed in writing to abide by and comply strictly with the rules and regulations of the City Jail.The Warden of the City Jail of Manila is hereby ordered to release the Accused Gerry Nery, Raul Billosos and Rolando Fernandez from the City Jail unless they are being detained for another cause or charge.The Petition for Bail of the Accused Rolando Fernandez has become moot and academic. The Petition for Bail of the Accused Joel Tan, Romeo Sison and Joselito Tamayo is denied for lack of merit.The bail bonds posted by the Accused Oliver Lozano and Benjamin Nuega are hereby cancelled.22On appeal, the Court of Appeals23on December 28, 1992, modified the decision of the trial court by acquitting Annie Ferrer but increasing the penalty of the rest of the accused, except for Joselito Tamayo, toreclusion perpetua. The appellate court found them guilty of murder qualified by abuse of superior strength, but convicted Joselito Tamayo of homicide because the information against him did not allege the said qualifying circumstance. The dispositive portion of the decision reads:PREMISES CONSIDERED, the decision appealed from is hereby MODIFIED as follows:1. Accused-appellants Romeo Sison y Mejia, Nilo Pacadar y Abe, Joel Tan y Mostero and Richard de los Santos are hereby found GUILTY beyond reasonable doubt of Murder and are each hereby sentenced to suffer the penalty ofReclusion Perpetua;2. Accused-appellant Joselito Tamayo y Oria is hereby found GUILTY beyond reasonable doubt of the crime of Homicide with the generic aggravating circumstance of abuse of superior strength and, as a consequence, an indeterminate penalty of TWELVE (12) YEARS ofprision mayoras Minimum to TWENTY (20) YEARS ofreclusion temporalas Maximum is hereby imposed upon him;3. Accused-appellant Annie Ferrer is hereby ACQUITTED of being an accomplice to the crime of Murder.CONSIDERING that the penalty ofReclusion Perpetuahas been imposed in the instant consolidated cases, the said cases are now hereby certified to the Honorable Supreme Court for review.24Petitioners filed G.R. Nos. 108280-83 under Rule 45 of the Revised Rules of Court inasmuch as Joselito Tamayo was not sentenced toreclusion perpetua. G.R. Nos. 114931-33 was certified to us for automatic review of the decision of the Court of Appeals against the four accused-appellants sentenced toreclusion perpetua.Before this court, accused-appellants assign the following errors:ITHE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT NOTED THAT THE ACCUSED FAILED TO CITE ANYTHING ON RECORD TO SUPPORT THEIR AVERMENT THAT THERE WERE NO WITNESSES WHO HAVE COME FORWARD TO IDENTIFY THE PERSONS RESPONSIBLE FOR THE DEATH OF STEPHEN SALCEDO.IITHE HONORABLE COURT OF APPEALS GRAVELY ERRED IN GIVING CREDENCE TO THE UNRELIABLE, DOUBTFUL, SUSPICIOUS AND INCONCLUSIVE TESTIMONIES OF PROSECUTION WITNESS RANULFO SUMILANG.IIITHE HONORABLE COURT OF APPEALS LIKEWISE ERRED IN FINDING THE ACCUSED GUILTY WHEN THERE WAS NO EVIDENCE TO PROVE THAT ANY OF THE ACCUSED CARRIED A HARD AND BLUNT INSTRUMENT, THE ADMITTED CAUSE OF THE HEMORRHAGE RESULTING IN THE DEATH OF THE DECEASED.IVTHE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT THERE EXISTS CONSPIRACY AMONG THE PRINCIPAL ACCUSED.VTHE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT THE CRIME COMMITTED IS MURDER AND NOT DEATH (HOMICIDE) CAUSED IN A TUMULTUOUS AFFRAY.25In their additional brief, appellants contend that:ITHE HONORABLE COURT OF APPEALS GRAVELY ERRED IN REACHING A CONCLUSION OF FACT UTILIZING SPECULATIONS, SURMISES, NON-SEQUITUR CONCLUSIONS, AND EVEN THE DISPUTED DECISION OF THE TRIAL COURT, TO UPHOLD THE VALIDITY OF THE VERY SAME JUDGMENT, ALL CONTRARY TO THE RULES OF EVIDENCE.IITHE HONORABLE COURT OF APPEALS ERRED IN ADMITTING EXHIBITS "D", "G", "O", "P", "V", TO "V-48", "W" TO "W-13", ALL OF WHICH WERE NOT PROPERLY IDENTIFIED.IIITHE HONORABLE COURT OF APPEALS GRAVELY ERRED IN CONCLUDING THAT CONSPIRACY EXISTED IN THE CASE AT BAR DISREGARDING ALTOGETHER THE SETTLED JURISPRUDENCE ON THE MATTER.IVTHE HONORABLE COURT OF APPEALS GRAVELY ERRED IN RULING THAT THE CRIME COMMITTED WAS MURDER, NOT DEATH (HOMICIDE) IN TUMULTUOUS AFFRAY SIDESTEPPING IN THE PROCESS THE FACTUAL GROUNDS SURROUNDING THE INCIDENT.26Appellants mainly claim that the Court of Appeals erred in sustaining the testimonies of the two in prosecution eyewitnesses, Ranulfo Sumilang and Renato Banculo, because they are unreliable, doubtful and do not deserve any credence. According to them, the testimonies of these two witnesses are suspect because they surfaced only after a reward was announced by General Lim. Renato Banculo even submitted three sworn statements to the police geared at providing a new or improved version of the incident. On the witness stand, he mistakenly identified a detention prisoner in another case as accused Rolando Fernandez.27Ranulfo Sumilang was evasive and unresponsive prompting the trial court to reprimand him several times.28There is no proof that Banculo or Sumilang testified because of the reward announced by General Lim, much less that both or either of them ever received such reward from the government. On the contrary, the evidence shows that Sumilang reported the incident to the police and submitted his sworn statement immediately two hours after the mauling, even before announcement of any reward.29He informed the police that he would cooperate with them and identify Salcedo's assailants if he saw them again.30The fact that Banculo executed three sworn statements does not make them and his testimony incredible. The sworn statements were made to identify more suspects who were apprehended during the investigation of Salcedo's death.31The records show that Sumilang was admonished several times by the trial court on the witness stand for being argumentative and evasive.32This is not enough reason to reject Sumilang's testimony for he did not exhibit this undesirable conduct all throughout his testimony. On the whole, his testimony was correctly given credence by the trial court despite his evasiveness at some instances. Except for compelling reasons, we cannot disturb the way trial courts calibrate the credence of witnesses considering their visual view of the demeanor of witnesses when on the witness stand. As trial courts, they can best appreciate the verbal and non-verbal dimensions of a witness' testimony.Banculo's mistake in identifying another person as one of the accused does not make him an entirely untrustworthy witness.33It does not make his whole testimony a falsity. An honest mistake is not inconsistent with a truthful testimony. Perfect testimonies cannot be expected from persons with imperfect senses. In the court's discretion, therefore, the testimony of a witness can be believed as to some facts but disbelieved with respect to the others.34We sustain the appellate and trial courts' findings that the witnesses' testimonies corroborate each other on all important and relevant details of the principal occurrence. Their positive identification of all petitioners jibe with each other and their narration of the events are supported by the medical and documentary evidence on record.Dr. Roberto Garcia, the medico-legal officer of the National Bureau of Investigation, testified that the victim had various wounds on his body which could have been inflicted by pressure from more than one hard object.35The contusions and abrasions found could have been caused by punches, kicks and blows from rough stones.36The fatal injury of intracranial hemorrhage was a result of fractures in Salcedo's skull which may have been caused by contact with a hard and blunt object such as fistblows, kicks and a blunt wooden instrument.37Appellants do not deny that Salcedo was mauled, kicked and punched. Sumilang in fact testified that Salcedo was pummeled by his assailants with stones in their hands.38Appellants also contend that although the appellate court correctly disregarded Exhibits "D," "G," and "P," it erroneously gave evidentiary weight to Exhibits "O," "V," "V-1" to "V-48," "W," "W-1" to "W-13."39Exhibit "O" is the Joint Affidavit of Pat. Flores and Pat. Bautista, the police intelligence-operatives who witnessed the rally and subsequent dispersal operation. Pat. Flores properly identified Exhibit "O" as his sworn statement and in fact gave testimony corroborating the contents thereof.40Besides, the Joint Affidavit merely reiterates what the other prosecution witnesses testified to. Identification by Pat. Bautista is a surplusage. If appellants wanted to impeach the said affidavit, they should have placed Pat. Flores on the witness stand.Exhibits "V," "V-1" to "V-48" are photographs taken of the victim as he was being mauled at the Luneta starting from a grassy portion to the pavement at the Rizal Monument and along Roxas Boulevard,41 as he was being chased by his assailants42and as he sat pleading with his assailants.43Exhibits "W", "W-1" to "W-13" are photographs of Salcedo and the mauling published in local newspapers and magazines such as the Philippine Star,44Mr. and Ms. Magazine,45Philippine Daily Inquirer,46and the Malaya.47The admissibility of these photographs is being questioned by appellants for lack of proper identification by the person or persons who took the same.The rule in this jurisdiction is that photographs, when presented in evidence, must be identified by the photographer as to its production and testified as to the circumstances under which they were produced.48The value of this kind of evidence lies in its being a correct representation or reproduction of the original,49and its admissibility is determined by its accuracy in portraying the scene at the time of the crime.50The photographer, however, is not the only witness who can identify the pictures he has taken.51The correctness of the photograph as a faithful representation of the object portrayed can beprovedprima facie, either by the testimony of the person who made it or by other competent witnesses, after which the court can admit it subject to impeachment as to its accuracy.52Photographs, therefore, can be identified by the photographer or by any other competent witness who can testify to its exactness and accuracy.53This court notes that when the prosecution offered the photographs as part of its evidence, appellants, through counsel Atty. Alfredo Lazaro, Jr. objected to their admissibility for lack of proper identification.54However, when the accused presented their evidence, Atty. Winlove Dumayas, counsel for accused Joselito Tamayo and Gerry Neri used Exhibits "V", "V-1" to "V-48" to prove that his clients were not in any of the pictures and therefore could not have participated in the mauling of the victim.55The photographs were adopted by appellant Joselito Tamayo and accused Gerry Neri as part of the defense exhibits. And at this hearing, Atty. Dumayas represented all the other accused per understanding with their respective counsels, including Atty. Lazaro, who were absent. At subsequent hearings, the prosecution used the photographs to cross-examine all the accused who took the witness stand.56No objection was made by counsel for any of the accused, not until Atty. Lazaro appeared at the third hearing and interposed a continuing objection to their admissibility.57The objection of Atty. Lazaro to the admissibility of the photographs is anchored on the fact that the person who took the same was not presented to identify them. We rule that the use of these photographs by some of the accused to show their alleged non-participation in the crime is an admission of the exactness and accuracy thereof. That the photographs are faithful representations of the mauling incident was affirmed when appellants Richard de los Santos, Nilo Pacadar and Joel Tan identified themselves therein and gave reasons for their presence thereat.58An analysis of the photographsvis-a-visthe accused's testimonies reveal that only three of the appellants, namely, Richard de los Santos, Nilo Pacadar and Joel Tan could be readily seen in various belligerent poses lunging or hovering behind or over the victim.59Appellant Romeo Sison appears only once and he, although afflicted with hernia is shown merely running after thevictim.60Appellant Joselito Tamayo was not identified in any of the pictures. The absence of the two appellants in the photographs does not exculpate them. The photographs did not capture the entire sequence of the killing of Salcedo but only segments thereof. While the pictures did not record Sison and Tamayo hitting Salcedo, they were unequivocally identified by Sumilang andBanculo61Appellants' denials and alibis cannot overcome their eyeball identification.Appellants claim that the lower courts erred in finding the existence of conspiracy among the principal accused and in convicting them of murder qualified by abuse of superior strength, not death in tumultuous affray.Death in a tumultuous affray is defined in Article 251 of the Revised Penal code as follows:Art. 251. Death caused in a tumultuous affray. When, while several persons, not composing groups organized for the common purpose of assaulting and attacking each other reciprocally, quarrel and assault each other in a confused and tumultuous manner, and in the course of the affray someone is killed, and it cannot be ascertained who actually killed the deceased, but the person or persons who inflicted serious physical injuries can be identified, such person or persons shall be punished byprison mayor.If it cannot be determined who inflicted the serious physical injuries on the deceased, the penalty ofprision correccionalin its medium and maximum periods shall be imposed upon all those who shall have used violence upon the person of the victim.For this article to apply, it must be established that: (1) there be several persons; (2) that they did not compose groups organized for the common purpose of assaulting and attacking each other reciprocally; (3) these several persons quarrelled and assaulted one another in a confused and tumultuous manner; (4) someone was killed in the course of the affray; (5) it cannot be ascertained who actually killed the deceased; and (6) that the person or persons who inflicted serious physical injuries or who used violence can be identified.62A tumultuous affray takes place when a quarrel occurs between several persons and they engage in a confused and tumultuous affray, in the course of which some person is killed or wounded and the author thereof cannot be ascertained.63The quarrel in the instant case, if it can be called a quarrel, was between one distinct group and one individual. Confusion may have occurred because of the police dispersal of the rallyists, but this confusion subsided eventually after the loyalists fled to Maria Orosa Street. It was only a while later after said dispersal that one distinct group identified as loyalists picked on one defenseless individual and attacked him repeatedly, taking turns in inflicting punches, kicks and blows on him. There was no confusion and tumultuous quarrel or affray, nor was there a reciprocal aggression at this stage of the incident.64As the lower courts found, the victim's assailants were numerous by as much as fifty in number65and were armed with stones with which they hit the victim. They took advantage of their superior strength and excessive force and frustrated any attempt by Salcedo to escape and free himself. They followed Salcedo from the Chinese Garden to the Rizal Monument several meters away and hit him mercilessly even when he was already fallen on the ground. There was a time when Salcedo was able to get up, prop himself against the pavement and wipe off the blood from his face. But his attackers continued to pursue him relentlessly. Salcedo could not defend himself nor could he find means to defend himself. Sumilang tried to save him from his assailants but they continued beating him, hitting Sumilang in the process. Salcedo pleaded for mercy but they ignored his pleas until he finally lost consciousness. The deliberate and prolonged use of superior strength on a defenseless victim qualifies the killing to murder.Treachery as a qualifying circumstance cannot be appreciated in the instant case. There is no proof that the attack on Salcedo was deliberately and consciously chosen to ensure the assailants' safety from any defense the victim could have made. True, the attack on Salcedo was sudden and unexpected but it was apparently because of the fact that he was wearing a yellow t-shirt or because he allegedly flashed the "Laban" sign against the rallyists, taunting them into mauling him. As the appellate court well found, Salcedo had the opportunity to sense the temper of the rallyists and run away from them but he, unfortunately, was overtaken by them. The essence of treachery is the sudden and unexpected attack without the slightest provocation on the part of the person being attacked.66The qualifying circumstance of evident premeditation was alleged in the information against Joselito Tamayo. Evident premeditation cannot be appreciated in this case because the attack against Salcedo was sudden and spontaneous, spurred by the raging animosity against the so-called "Coryistas." It was not preceded by cool thought and reflection.We find however the existence of a conspiracy among appellants. At the time they were committing the crime, their actions impliedly showed a unity of purpose among them, a concerted effort to bring about the death of Salcedo. Where a conspiracy existed and is proved, a showing as to who among the conspirators inflicted the fatal wound is not required to sustain a conviction.67Each of the conspirators is liable for all acts of the others regardless of the intent and character of their participation, because the act of one is the act of all.68The trial court awarded the heirs of Salcedo P74,000.00 as actual damages, P30,000.00 as moral and exemplary damages, and one half of the costs of the suit. At the time he died on July 27, 1986, Salcedo was twenty three years old and was set to leave on August 4, 1986 for employment in Saudi Arabia.69The reckless disregard for such a young person's life and the anguish wrought on his widow and three small children,70warrant an increase in moral damages from P30,000.00 to P100,000.00. The indemnity of P50,000.00 must also be awarded for the death of the victim.71IN VIEW WHEREOF, the decision appealed from is hereby affirmed and modified as follows:1. Accused-appellants Romeo Sison, Nilo Pacadar, Joel Tan and Richard de los Santos are found GUILTY beyond reasonable doubt of Murder without any aggravating or mitigating circumstance and are each hereby sentenced to suffer the penalty ofreclusion perpetua;2. Accused-appellant Joselito Tamayo is found GUILTY beyond reasonable doubt of the crime of Homicide with the generic aggravating circumstance of abuse of superior strength and, as a consequence, he is sentenced to an indeterminate penalty of TWELVE (12) YEARS ofprision mayoras minimum to TWENTY (20) YEARS ofreclusion temporalas maximum;3. All accused-appellants are hereby ordered to pay jointly and severally the heirs of Stephen Salcedo the following amounts:(a) P74,000.00 as actual damages;(b) P100,000.00 as moral damages; and(c) P50,000.00 as indemnity for the death of the victim.Costs against accused-appellants.SO ORDERED.[G.R. No. 124893.April 18, 1997]LYNETTE G. GARVIDA,petitioner, vs.FLORENCIO G. SALES, JR., THE HONORABLE COMMISSION ON ELECTIONS, ELECTION OFFICER DIONISIO F. RIOS and PROVINCIAL SUPERVISOR NOLI PIPO,respondents.D E C I S I O NPUNO,J.:Petitioner Lynette G. Garvida seeks to annul and set aside the order dated May 2, 1996 of respondent Commission on Elections (COMELEC)en bancsuspending her proclamation as the duly elected Chairman of the Sangguniang Kabataan of Barangay San Lorenzo, Municipality of Bangui, Ilocos Norte.The facts are undisputed.The Sangguniang Kabataan (SK) elections nationwide was scheduled to be held on May 6, 1996.On March 16, 1996, petitioner applied for registration as member and voter of the Katipunan ng Kabataan of Barangay San Lorenzo, Bangui, Ilocos Norte.The Board of Election Tellers, however, denied her application on the ground that petitioner, who was then twenty-one years and ten (10) months old, exceeded the age limit for membership in the Katipunan ng Kabataan as laid down in Section 3 [b] of COMELEC Resolution No. 2824.On April 2, 1996, petitioner filed a "Petition for Inclusion as Registered Kabataang Member and Voter" with the Municipal Circuit Trial Court, Bangui-Pagudpud-Adams-Damalneg, Ilocos Norte.In a decision dated April 18, 1996, the said court found petitioner qualified and ordered her registration as member and voter in the Katipunan ng Kabataan.[1]The Board of Election Tellers appealed to the Regional Trial Court, Bangui, Ilocos Norte.[2]The presiding judge of the Regional Trial Court, however, inhibited himself from acting on the appeal due to his close association with petitioner.[3]On April 23, 1996, petitioner filed her certificate of candidacy for the position of Chairman, Sangguniang Kabataan, Barangay San Lorenzo, Municipality of Bangui, Province of Ilocos Norte.In a letter dated April 23, 1996, respondent Election Officer Dionisio F. Rios, per advice of Provincial Election Supervisor Noli Pipo,[4]disapproved petitioner's certificate of candidacy again due to her age.[5]Petitioner, however, appealed to COMELEC Regional Director Filemon A. Asperin who set aside the order of respondents and allowed petitioner to run.[6]On May 2, 1996, respondent Rios issued a memorandum to petitioner informing her of her ineligibility and giving her 24 hours to explain why her certificate of candidacy should not be disapproved.[7]Earlier and without the knowledge of the COMELEC officials, private respondent Florencio G. Sales, Jr., a rival candidate for Chairman of the Sangguniang Kabataan, filed with the COMELEC en banc a "Petition of Denial and/or Cancellation of Certificate of Candidacy" against petitioner Garvida for falsely representing her age qualification in her certificate of candidacy.The petition was sent by facsimile[8]and registered mail on April 29, 1996 to the Commission on Elections National Office, Manila.On May 2, 1996, the same day respondent Rios issued the memorandum to petitioner, the COMELEC en banc issued an order directing the Board of Election Tellers and Board of Canvassers of Barangay San Lorenzo to suspend the proclamation of petitioner in the event she won in the election.The order reads as follows:"Acting on the Fax "Petition for Denial And/Or Cancellation of Certificate of Candidacy" by petitioner Florencio G. Sales, Jr. against Lynette G. Garvida, received on April 29, 1996, the pertinent allegations of which reads:x x x5.That the said respondent is disqualified to become a voter and a candidate for the SK for the reason that she will be more than twenty-one (21) years of age on May 6, 1996; that she was born on June 11, 1974 as can be gleaned from her birth certificate, a copy of which is hereto attached and marked as Annex "A";6.That in filing her certificate of candidacy as candidate for SK of Bgy. San Lorenzo, Bangui, Ilocos Norte, she made material representation which is false and as such, she is disqualified; that her certificate of candidacy should not be given due course and that said candidacy must be cancelled;x x x."the Commission, it appearing that the petition is meritorious, hereby DIRECTS the Board of Election Tellers/Board of Canvassers of Barangay San Lorenzo, Bangui, Ilocos Norte, to suspend the proclamation of Lynette G. Garvida in the event she garners the highest number of votes for the position of Sangguniang Kabataan [sic].Meantime, petitioner is hereby required to submit immediately ten (10) copies of his petition and to pay the filing and legal research fees in the amount ofP510.00.SO ORDERED."[9]On May 6, 1996, election day, petitioner garnered 78 votes as against private respondent's votes of 76.[10]In accordance with the May 2, 1996 order of the COMELECen banc, the Board of Election Tellers did not proclaim petitioner as the winner.Hence, the instant petition for certiorari was filed on May 27, 1996.On June 2, 1996, however, the Board of Election Tellers proclaimed petitioner the winner for the position of SK chairman, Barangay San Lorenzo, Bangui, Ilocos Norte.[11]The proclamation was "without prejudice to any further action by the Commission on Elections or any other interested party."[12]On July 5, 1996, petitioner ran in the Pambayang Pederasyon ng mga Sangguniang Kabataan for the municipality of Bangui, Ilocos Norte. She won as Auditor and was proclaimed one of the elected officials of the Pederasyon.[13]Petitioner raises two (2) significant issues:the first concerns the jurisdiction of the COMELECen banc to act on the petition to deny or cancel her certificate of candidacy; the second, the cancellation of her certificate of candidacy on the ground that she has exceeded the age requirement to run as an elective official of the SK.ISection 532 (a) of the Local Government Code of 1991 provides that the conduct of the SK elections is under the supervision of the COMELEC and shall be governed by the Omnibus Election Code.[14]The Omnibus Election Code, in Section 78, Article IX, governs the procedure to deny due course to or cancel a certificate of candidacy, viz:"Sec. 78.Petition to deny due course to or cancel a certificate of candidacy. -- A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false.The petition may be filed at any time not later than twenty-five days from the time of filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before election."In relation thereto, Rule 23 of the COMELEC Rules of Procedure provides that a petition to deny due course to or cancel a certificate of candidacy for an elective office may be filed with the Law Department of the COMELEC on the ground that the candidate has made a false material representation in his certificate.The petition may be heard and evidence received by any official designated by the COMELEC after which the case shall be decided by the COMELEC itself.[15]Under the same Rules of Procedure, jurisdiction over a petition to cancel a certificate of candidacy lies with the COMELEC sitting in Division, not en banc.Cases before a Division may only be entertained by the COMELEC en banc when the required number of votes to reach a decision, resolution, order or ruling is not obtained in the Division.Moreover, only motions to reconsider decisions, resolutions, orders or rulings of the COMELEC in Division are resolved by the COMELEC en banc.[16]It is therefore the COMELEC sitting in Divisions that can hear and decide election cases. This is clear from Section 3 of the said Rules thus:"Sec. 3.The Commission Sitting in Divisions. -- The Commission shall sit in two (2) Divisions to hear and decide protests or petitions in ordinary actions, special actions, special cases, provisional remedies, contempt and special proceedings except in accreditation of citizens' arms of the Commission."[17]In the instant case, the COMELEC en banc did not refer the case to any of its Divisions upon receipt of the petition.It therefore acted without jurisdiction or with grave abuse of discretion when it entertained the petition and issued the order of May 2, 1996.[18]IIThe COMELEC en banc also erred when it failed to note that the petition itself did not comply with the formal requirements of pleadings under the COMELEC Rules of Procedure.These requirements are:"Sec. 1.Filing of Pleadings. -- Every pleading, motion and other papers must be filed in ten (10) legible copies.However, when there is more than one respondent or protestee, the petitioner or protestant must file additional number of copies of the petition or protest as there are additional respondents or protestees.Sec. 2.How Filed.-- The documents referred to in the immediately preceding section must be filed directly with the proper Clerk of Court of the Commission personally, or, unless otherwise provided in these Rules, by registered mail.In the latter case, the date of mailing is the date of filing and the requirement as to the number of copies must be complied with.Sec. 3.Form of Pleadings, etc.-- (a)All pleadings allowed by these Rules shall be printed, mimeographed or typewritten on legal size bond paper and shall be in English or Filipino.x x x."Every pleading before the COMELEC must be printed, mimeographed or typewritten in legal size bond paper and filed in at least ten (10) legible copies.Pleadings must be filed directly with the proper Clerk of Court of the COMELECpersonally, or, by registered mail.In the instant case, the subject petition was not in proper form.Only two (2) copies of the petition were filed with the COMELEC.[19]Also, the COMELEC en banc issued its Resolution on the basis of the petition transmitted by facsimile, not by registered mail.A facsimile or fax transmission is a process involving the transmission and reproduction of printed and graphic matter by scanning an original copy, one elemental area at a time, and representing the shade or tone of each area by a specified amount of electric current.[20]The current is transmitted as a signal over regular telephone lines or via microwave relay and is used by the receiver to reproduce an image of the elemental area in the proper position and the correct shade.[21]The receiver is equipped with a stylus or other device that produces a printed record on paper referred to as a facsimile.[22]Filing a pleading by facsimile transmission is not sanctioned by the COMELEC Rules of Procedure, much less by the Rules of Court.A facsimile is not a genuine and authentic pleading.It is, at best, an exact copy preserving all the marks of an original.[23]Without the original, there is no way of determining on its face whether the facsimile pleading is genuine and authentic and was originally signed by the party and his counsel.It may, in fact, be a sham pleading.The uncertainty of the authenticity of a facsimile pleading should have restrained the COMELEC en banc from acting on the petition and issuing the questioned order.The COMELECen bancshould have waited until it received the petition filed by registered mail.IIITo write finis to the case at bar, we shall now resolve the issue of petitioner's age.The Katipunan ng Kabataan was originally created by Presidential Decree No. 684 in 1975 as the Kabataang Barangay, a barangay youth organization composed of all residents of the barangay who were at least 15 years but less than 18 years of age.[24]The Kabataang Barangay sought to provide its members a medium to express their views and opinions and participate in issues of transcendental importance.[25]Its affairs were administered by a barangay youth chairman together with six barangay youth leaders who were actual residents of the barangay and were at least 15 years but less than 18 years of age.[26]In 1983, Batas Pambansa Blg. 337, then the Local Government Code, raised the maximum age of the Kabataang Barangay members from "less than 18 years of age" to "not more than 21 years of age."The Local Government Code of 1991 changed the Kabataang Barangay into the Katipunan ng Kabataan.It, however, retained the age limit of the members laid down in B.P. 337 at 15 but not more than 21 years old.[27]The affairs of the Katipunan ng Kabataan are administered by the Sangguniang Kabataan (SK) composed of a chairman and seven (7) members who are elected by the Katipunan ng Kabataan.[28]The chairman automatically becomes ex-officio member of the Sangguniang Barangay.[29]A member of the SK holdsoffice for aterm of three (3) years, unless sooner removed for cause, or becomes permanently incapacitated, dies or resigns from office.[30]Membership in the Katipunan ng Kabataan is subject to specific qualifications laid down by the Local Government Code of 1991,viz:"Sec. 424.Katipunan ng Kabataan.-- The katipunan ng kabataan shall be composed of all citizens of the Philippines actually residing in the barangay for at least six (6) months, who are fifteen (15) but not more than twenty-one (21) years of age, and who are duly registered in the list of the sangguniang kabataan or in the official barangay list in the custody of the barangay secretary."A member of the Katipunan ng Kabataan may become a candidate for the Sangguniang Kabataan if he possesses the following qualifications:"Sec. 428.Qualifications.--An elective official of the sangguniang kabataan must be a citizen of the Philippines, a qualified voter of the katipunan ng kabataan, a resident of the barangay for at least one (1) year immediately prior to election, at least fifteen (15) years but not more than twenty-one (21) years of age on the day of his election, able to read and write Filipino, English, or the local dialect, and must not have been convicted of any crime involving moral turpitude."Under Section 424 of the Local Government Code, a member of the Katipunan ng Kabataan must be:(a)a Filipino citizen; (b)an actual resident of the barangay for at least six months; (c)15 but not more than 21 years of age;and(d)duly registered in the list of the Sangguniang Kabataan or in the official barangay list.Section 428 of the Code requires that an elective official of the Sangguniang Kabataan must be:(a)a Filipino citizen;(b)a qualifiedvoter in the Katipunan ng Kabataan;(c)a resident of the barangay at least one (1) year immediately preceding the election;(d)at least 15 years but not more than 21 years of age on the day of his election;(e)able to read and write; and (f)must not have been convicted of any crime involving moral turpitude.For the May 6, 1996 SK elections, the COMELEC interpreted Sections 424 and 428 of the Local Government Code of 1991 in Resolution No. 2824 and defined how a member of the Katipunan ng Kabataan becomes a qualified voter and an elective official.Thus:"Sec. 3.Qualifications of a voter.-- To be qualified to register as a voter in the SK elections, a person must be:a) a citizen of the Philippines;b) fifteen (15) but not more than twenty-one (21) years of age on election day, that is, he must have been born between May 6, 1975 and May 6, 1981, inclusive; andc) a resident of the Philippines for at least one (1) year and actually residing in the barangay wherein he proposes to vote for at least six (6) months immediately preceding the elections."x x x"Sec. 6.Qualifications of elective members. -- An elective official of the SK must be:a) a qualified voter;b) a resident in the barangay for at least one (1) year immediately prior to the elections; andc) able to read and write Filipino or any Philippine language or dialect or English.Cases involving the eligibility or qualification of candidates shall be decided by the city/municipal Election Officer (EO) whose decision shall be final."A member of the Katipunan ng Kabataan may be a qualified voter in the May 6, 1996 SK elections if he is:(a)a Filipino citizen; (b)15 but not more than 21 years of age on election day, i.e., the voter must be born between May 6, 1975 and May 6, 1981, inclusive; and (c)a resident of the Philippines for at least one (1) year and an actual resident of the barangay at least six (6) months immediately preceding the elections.A candidate for the SK must:(a)possess the foregoing qualifications of a voter;(b)be a resident in the barangay at least one (1) year immediately preceding the elections; and (c)able to read and write.Except for the question of age, petitioner has all the qualifications of a member and voter in the Katipunan ng Kabataan and a candidate for the Sangguniang Kabataan.Petitioner's age is admittedly beyond the limit set in Section 3 [b] of COMELEC Resolution No. 2824.Petitioner, however, argues that Section 3 [b] of Resolution No. 2824 is unlawful, ultra vires and beyond the scope of Sections 424 and 428 of the Local Government Code of 1991.She contends that the Code itself does not provide that the voter must beexactly 21 years of age on election day.She urges that so long as she did not turn twenty-two (22) years old, she was still twenty-one years of age on election day and therefore qualified as a member and voter in the Katipunan ng Kabataan and as candidate for the SK elections.A closer look at the Local Government Code will reveal a distinction between the maximum age of a member in the Katipunan ng Kabataan and the maximum age of an elective SK official.Section 424 of the Code sets a member's maximum age at 21 years only.There is no further provision as to when the member shall have turned 21 years of age.On the other hand, Section 428 provides that the maximum age of an elective SK official is 21 years old "on the day of his election."The addition of the phrase "on the day of his election" is an additional qualification.The member may be more than 21 years of age on election day or on the day he registers as member of the Katipunan ng Kabataan.The elective official, however, must not be more than 21 years old on the day of election.The distinction is understandable considering that the Code itself provides more qualifications for an elective SK official than for a member of the Katipunan ng Kabataan.Dissimilum dissimilis est ratio.[31]The courts may distinguish when there are facts and circumstances showing that the legislature intended a distinction or qualification.[32]The qualification that a voter in the SK elections must not be more than 21 years of age on the day of the election is not provided in Section 424 of the Local Government Code of 1991.In fact the term "qualified voter" appears only in COMELEC Resolution No. 2824.[33]Since a "qualified voter" is not necessarily an elective official, then it may be assumed that a "qualified voter" is a "member of the Katipunan ng Kabataan."Section 424 of the Code does not provide that the maximum age of a member of the Katipunan ng Kabataan is determined on the day of the election.Section 3 [b] ofCOMELEC Resolution No. 2824 is therefore ultra viresinsofar as it sets the age limit of a voter for the SK elections at exactly 21 yearson the day of the election.The provision that an elective official of the SK should not be more than 21 years of age on the day of his election is very clear.The Local Government Code speaks of years, not months nor days.When the law speaks of years, it is understood that years are of 365 days each.[34]One born on the first day of the year is consequently deemed to be one year old on the 365th day after his birth -- the last day of the year.[35]In computing years, the first year is reached after completing the first 365 days.After the first 365th day, the first day of the second 365-day cycle begins.On the 365th day of the second cycle, the person turns two years old.This cycle goes on and on in a lifetime.A person turns 21 years old on the 365th day of his 21st 365-day cycle.This means on his 21st birthday, he has completed the entirespan of 21 365-day cycles.After this birthday, the 365-day cycle for his 22nd year begins.The day after the 365th day is the first day of the next 365-day cycle and he turns 22 years old on the 365th day.The phrase "not more than 21 years of age" means not over 21 years, not beyond 21 years.It means 21 365-day cycles.It does not mean 21 years and one or some days or a fraction of a year because that would be more than 21 365-day cycles."Not more than 21 years old" is not equivalent to "less than 22 years old," contrary to petitioner's claims.The law does not state that the candidate be less than 22 years on election day.In P.D. 684, the law that created the Kabataang Barangay, the age qualification of a barangay youth official was expressly stated as "x x x at least fifteenyears of age or over but less than eighteen x x x."[36]This provision clearly states that the youth official must be at least 15 years old and may be 17 years and a fraction of a year but should not reach the age of eighteen years.When the Local Government Code increased the age limit of members of the youth organization to 21 years, it did not reenact the provision in such a way as to make the youth "at least 15 but less than 22 years old."If the intention of the Code's framers was to include citizens less than 22 years old, they should have stated so expressly instead of leaving the matter open to confusion and doubt.[37]Former Senator Aquilino Q. Pimentel, the sponsor and principal author of the Local Government Code of 1991 declared that one of the reasons why the Katipunan ng Kabataan was created and the Kabataang Barangay discontinued was because most, if not all, Kabataang Barangay leaders were already over 21 years of age by the time President Aquino assumed power.[38]They were not the "youth" anymore.The Local Government Code of 1991 fixed the maximum age limit at not more than 21 years[39]and the only exception is in the second paragraph of Section 423 which reads:"Sec. 423.Creation and Election. -- a)xx x;b) A sangguniang kabataan official who, during his term of office, shall have passed the age of twenty-one (21) years shall be allowed to serve the remaining portion of the term for which he was elected."The general rule is that an elective official of the Sangguniang Kabataan must not be more than 21 years of age on the day of his election.The only exception is when the official reaches the age of 21 years during his incumbency.Section 423 [b] of the Code allows him to serve the remaining portion of the term for which he was elected.According to Senator Pimentel, the youth leader must have "been elected prior to his 21st birthday."[40]Conversely, the SK official must not have turned 21 years old before his election.Reading Section 423 [b] together with Section 428 of the Code, the latest date at which an SK elective official turns 21 years old is on the day of his election.The maximum age of a youth official must therefore be exactly 21 yearson election day.Section 3 [b] in relation to Section 6 [a] of COMELEC Resolution No. 2824 is not ultra vires insofar as it fixes the maximum age of an elective SK official on the day of his election.In the case at bar, petitioner was born on June 11, 1974.On March 16, 1996, the day she registered as voter for the May 6, 1996 SK elections, petitioner was twenty-one (21) years and nine (9) months old.On the day of the elections, she was 21 years, 11 months and 5 days old.When she assumed office on June 1, 1996, she was 21 years, 11 months and 20 days old and was merely ten (10) days away from turning 22 years old.Petitioner may have qualified as a member of the Katipunan ng Kabataan but definitely, petitioner was over the age limit for elective SK officials set by Section 428 of the Local Government Code and Sections 3 [b] and 6 of Comelec Resolution No. 2824.She was ineligibleto run as candidate for the May 6, 1996 Sangguniang Kabataan elections.The requirement that a candidate possess the age qualification is founded on public policyand if he lacks the age on the day of the election, he can be declared ineligible.[41]In the same vein, if the candidate is over the maximum age limit on the day of the election, he is ineligible.The fact that the candidate was elected will not make the age requirement directory, nor will it validate his election.[42]The will of the people as expressed through the ballot cannot cure the vice of ineligibility.[43]The ineligibility of petitioner does not entitle private respondent, the candidate who obtained the highest number of votes in the May 6, 1996 elections, to be declared elected.[44]A defeated candidate cannot be deemed elected to the office.[45]Moreover, despite his claims,[46]private respondent has failed to prove that the electorate themselves actually knew of petitioner's ineligibility and that they maliciously voted for her with the intention of misapplying their franchises and throwing away their votes for the benefit of her rival candidate.[47]Neither can this Court order that pursuant to Section 435 of the Local Government Code petitioner should be succeeded by the Sangguniang Kabataan member who obtained the next highest number of votes in the May 6, 1996 elections.[48]Section 435 applies when a Sangguniang Kabataan Chairman "refuses to assume office, fails to qualify,[49]is convicted of a felony, voluntarily resigns, dies, is permanently incapacitated, is removed from office, or has been absent without leave for more than three (3) consecutive months."The question of the age qualification is a question of eligibility.[50]Being "eligible" means being "legally qualified;capable of being legally chosen."[51]Ineligibility, on the other hand, refers to the lack of the qualifications prescribed in theConstitution or the statutes for holding public office.[52]Ineligibility is not one of the grounds enumerated in Section 435 for succession of the SK Chairman.To avoid a hiatus in the office of SK Chairman, the Court deems it necessary to order that the vacancy be filled by the SK member chosen by the incumbent SK members ofBarangay San Lorenzo, Bangui, Ilocos Norte by simple majority from among themselves.The member chosen shall assume the office of SK Chairman for the unexpired portion of the term, and shall discharge the powers and duties, and enjoy the rights and privileges appurtenant to said office.IN VIEW WHEREOF, the petition is dismissed and petitioner Lynette G. Garvida is declared ineligible for being over the age qualification for candidacy in the May 6, 1996 elections of the Sangguniang Kabataan, and is ordered to vacate her position as Chairman of the Sangguniang Kabataan of Barangay San Lorenzo, Bangui, Ilocos Norte.The Sangguniang Kabataan member voted by simple majority by and from among the incumbent Sangguniang Kabataan members of Barangay San Lorenzo, Bangui, Ilocos Norteshall assume the office ofSangguniang Kabataan Chairman of Barangay San Lorenzo, Bangui, Ilocos Norte for the unexpired portion of the term.SO ORDERED.[G.R. No. 140520.December 18, 2000]JUSTICE SERAFIN R. CUEVAS, substituted by ARTEMIO G. TUQUERO in his capacity as Secretary of Justice,petitioner, vs.JUAN ANTONIO MUOZ,respondent.D E C I S I O NDE LEON, JR.,J.:Before us is a petition for review oncertiorariof the Decision[1]of the Court of Appeals, dated November 9, 1999, directing the immediate release of respondent Juan Antonio Muoz from the custody of law upon finding the Order[2]of provisional arrest dated September 20, 1999 issued by Branch 19 of the Regional Trial Court of Manila to be null and void.The antecedent facts:On August 23, 1997, the Hong Kong Magistrates Court at Eastern Magistracy issued a warrant for the arrest of respondent for seven (7) counts of accepting an advantage as an agent contrary to Section 9(1)(a) of the Prevention of Bribery Ordinance, Cap. 201 of Hong Kong, and seven (7) counts of conspiracy to defraud, contrary to the common law of Hong Kong.[3]Said warrant remains in full force and effect up to the present time.[4]On September 13, 1999, the Philippine Department of Justice (hereafter, Philippine DOJ) received a request for the provisional arrest of the respondent from the Mutual Legal Assistance Unit, International Law Division of the Hong Kong Department of Justice (hereafter, Hong Kong DOJ)[5]pursuant to Article 11(1) of the Agreement Between The Government Of The Republic Of The Philippines And The Government Of Hong Kong For The Surrender Of Accused And Convicted Persons (hereafter, RP-Hong Kong Extradition Agreement).[6]The Philippine DOJ forwarded the request for provisional arrest to the Anti-Graft Division of the National Bureau of Investigation (NBI).On September 17, 1999, for and in behalf of the government of Hong Kong, the NBI filed an application for the provisional arrest of respondent with the Regional Trial Court (RTC) of Manila.On September 20, 1999, Branch 19 of the RTC of Manila issued an Order granting the application for provisional arrest and issuing the corresponding Order of Arrest.[7]On September 23, 1999, respondent was arrested pursuant to the said order, and is currently detained at the NBI detention cell.[8]On October 14, 1999, respondent filed with the Court of Appeals, a petition forcertiorari, prohibition and mandamus with application for preliminary mandatory injunction and/or writ ofhabeas corpusassailing the validity of the Order of Arrest.The Court of Appeals rendered a decision declaring the Order of Arrest null and void on the following grounds:(1)that there was no urgency to warrant the request for provisional arrest under Article 11(1) of the RP-Hong Kong Extradition Agreement;[9](2)that the request for provisional arrest and the accompanying warrant of arrest and summary of facts were unauthenticated and mere facsimile copies which are insufficient to form a basis for the issuance of the Order of Arrest;[10](3)that the twenty (20) day period for provisional arrest under Section 20(d) of Presidential Decree No. 1069 otherwise known as the Philippine Extradition Law, was not amended by Article 11(3) of the RP-Hong Kong Extradition Agreement which provides for a forty-five (45) day period for provisional arrest;[11](4)that the Order of Arrest was issued without the Judge having personally determined the existence of probable cause;[12]and(5)that the requirement of dual criminality under Section 3(a) of P.D. No. 1069 has not been satisfied as the crimes for which respondent is wanted