EN BANC

[G.R. No. 100210. April 1, 1998.]

THE PEOPLE OF THE PHILIPPINES, petitioners, vs. HON.

OSCAR B. PIMENTEL, as Judge, RTC of Makati, Metro Manila,
Branch 148 and ANTONIO A. TUJAN, respondents.

The Solicitor General for petitioner.

Augusto S. Sanchez & Associates Law Firm for private respondents.

SYNOPSIS

Antonio Tujan was charged with Subversion under Republic Act No. 1700
(the Anti-Subversion Law), as amended. When arrested, an unlicensed revolver
and six rounds of live ammunition were found in his possession, hence, he was
also charged with Illegal Possession of Firearm and Ammunition in Furtherance
of Subversion under the Presidential Decree No. 1866, as amended. Tujan filed
a motion to quash the charge for Illegal Possession of Firearm on the ground
that he had been previously in jeopardy of being convicted of the offense
charged. The petitioner opposed the motion. The trial court granted the motion.
Petitioner's motion for reconsideration was also denied. The petitioner elevated
the case to the Court of Appeals through a petition for certiorari. The appellate
court found that the trial court did not commit any grave abuse of discretion
amounting to lack or excess of jurisdiction in quashing the questioned
information. This leads to the issue of whether or not private respondent was
placed in double jeopardy with the filing of the second Information for Illegal
Possession of Firearm and Ammunition in Furtherance of Subversion. AEIHaS

The provisions of PD No. 1866 are plain and simple. Under the first
paragraph of Section 1, the mere possession of an unlicensed firearm or
ammunition is the crime itself. The third paragraph of the same Section makes
the use of said firearms and ammunition in furtherance of, or incident to, or in
connection with the crimes of rebellion, insurrection or subversion, a
circumstance to increase the penalty of death. There is, therefore, only one
offense charged in the questioned information, that is, the illegal possession of
firearm and ammunition, qualified by its being used in furtherance of
subversion. However, while the Supreme Court ruled that both the subversion
charge and the one for illegal possession of firearm and ammunition in
furtherance of subversion can co-exist, the subsequent enactment of Republic
Act No. 7636 on September 22, 1992 totally repealing R.A. No. 1700, as
amended, has substantially changed the complexion of the present case, in as
much as the said repealing law being favorable to Tujan, who is not a habitual
delinquent, should be given retroactive effect. The subversion charge was
dismissed and the other information for illegal possession of firearm and
ammunition in furtherance of subversion against the same accused was
amended to simple illegal possession of firearm and ammunition. Tujan,
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 however, was released from detention because the length of his detention
while his case was pending had already exceeded the penalty prescribed by the
new law.

SYLLABUS

1. CRIMINAL LAW; ILLEGAL POSSESSION OF FIREARM AND

AMMUNITION IN FURTHERANCE OF SUBVERSION (P.D. NO. 1866); SEPARATE
OFFENSE FROM REBELLION, INSURRECTION, OR SUBVERSION. — The provisions
of P.D. No. 1866 are plain and simple. Under the first paragraph of Section 1,
the mere possession of an unlicensed firearm or ammunition is the crime itself
which carries the penalty of reclusion temporal in its maximum period to
reclusion perpetua. The third paragraph of the same Section makes the use of
said firearm and ammunition "in furtherance of, or incident to, or in connection
with the crimes of rebellion, insurrection or subversion" a circumstance to
increase the penalty to death. Thus, the allegation in the Information in
Criminal Case No. 1789 that the unlicensed firearm found in the possession of
Antonio Tujan, "a member of the communist party of the Philippines and its
front organization," was used "in furtherance of or incident to, or in connection
with the crime of subversion" does not charge him with the separate and
distinct crime of Subversion in the same Information, but simply describes the
mode or manner by which the violation of Section 1 of P.D. No. 1866 was
committed so as to qualify the penalty to death. There is, therefore, only one
offense charged in the questioned information, that is, the illegal possession of
firearm and ammunition, qualified by its being in furtherance of subversion.
There is nothing in P.D. No. 1866, specifically Section 1 thereof, which decrees
categorically or by implication that the crimes of rebellion, insurrection or
subversion are the very acts that are being penalized. This is clear from the
title of the law itself which boldly indicates the specific acts penalized under it:
"CODIFYING THE LAWS ON ILLEGAL/UNLAWFUL POSSESSION, MANUFACTURE,
DEALING IN, ACQUISITION OR DISPOSITION, OF FIREARMS, AMMUNITION OR
EXPLOSIVES OR INSTRUMENTS USED IN THE MANUFACTURE OF FIREARMS,
AMMUNITION OR EXPLOSIVES AND IMPOSING STIFFER PENALTIES FOR CERTAIN
VIOLATIONS THEREOF AND FOR RELEVANT PURPOSES."
2. POLITICAL LAW; BILL OF RIGHTS; RIGHT OF THE ACCUSED AGAINST
DOUBLE JEOPARDY; REQUISITES. — The right of an accused against double
jeopardy is a matter which he may raise in a motion to quash to defeat a
subsequent prosecution for the same offense. The pertinent provision of Rule
117 of the Revised Rules of Court provides: "SEC. 3. Grounds. — The accused
may move to quash the complaint or information on any of the following
grounds: . . . (h) That the accused has been previously convicted or in jeopardy
of being convicted, or acquitted of the offense charged. (2a)" In order that the
protection against double jeopardy may inure to the benefit of an accused, the
following requisites must have obtained in the first criminal action: (a) a valid
complaint or information; (b) a competent court; (c) the defendant had pleaded
to the charge; and (d) the defendant was acquitted, or convicted, or the case
against him was dismissed or otherwise terminated without his express
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 consent.
3. CRIMINAL LAW; RETROACTIVE EFFECT OF PENAL LAWS; WHERE THE
REPEAL OF A PENAL LAW IS TOTAL AND ABSOLUTE AND THE ACT WHICH WAS
PENALIZED BY A PRIOR LAW CEASES TO BE A CRIMINAL UNDER THE NEW LAW,
THE PREVIOUS OFFENSE IS OBLITERATED; CASE AT BAR. — That R.A. No. 7636
should apply retroactively to accused-private respondent is beyond question.
The repeal by said law of R.A. No. 1700, as amended, was categorical, definite
and absolute. There was no saving clause in the repeal. The legislative intent of
totally abrogating the old anti-subversion law is clear. Thus, it would be illogical
for the trial courts to try and sentence the accused-private respondent for an
offense that no longer exists. As early as 1935, we ruled in People vs. Tamayo :
"there is no question that at common law and in America a much more
favorable attitude towards the accused exists relative to statutes that have
been repealed than has been adopted here. Our rule is more in conformity with
the Spanish Doctrine, but even in Spain, where the offense ceases to be
criminal, prosecution cannot be had. (1 Pacheco Commentaries 296) "Where, as
here, the repeal of a penal law is total and absolute and the act which was
penalized by a prior law ceases to be criminal under the new law, the previous
offense is obliterated. It is a recognized rule in this jurisdiction that a total
repeal deprives the courts of jurisdiction to try, convict and sentence persons
charged with violation of the old law prior to the repeal. With the enactment of
R.A. No. 7636, the charge of subversion against the accused-private respondent
has no more legal basis and should be dismissed. CIETDc

DECISION

MARTINEZ, J : p

Is the Court of Appeals, in affirming the order of the Regional Trial Court,
correct in ruling that Subversion is the "main offense" in a charge of Illegal
Possession of Firearm and Ammunition in Furtherance of Subversion under P.D.
No. 1866, as amended, and that, therefore, the said charge should be quashed
in view of a previous charge of Subversion under R.A. No. 1700, as amended by
P.D. No. 885, against the same accused pending in another court?
Stated differently, is the accused charged with the same offense in both
cases, which would justify the dismissal of the second charge on the ground of
double jeopardy? cdasia

This is the pith issue presented before us in this appeal by certiorari

interposed by the People under Rule 45 of the Revised Rules of Court, seeking a
review of the decision 1 of the Court of Appeals (Sixteenth Division) dated May
27, 1991, in CA-G.R. SP No. 24273, entitled "THE PEOPLE OF THE PHILIPPINES,
Petitioner, versus HON. OSCAR B. PIMENTEL, as Judge, RTC of Makati, Metro
Manila, Branch 148 and ANTONIO A. TUJAN, Respondents."

The record discloses the following antecedent facts:

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 As early as 1983, private respondent Antonio Tujan was charged with
Subversion under Republic Act No. 1700 (the Anti-Subversion Law), as
amended, before the Regional Trial Court of Manila (Branch 45), National
Capital Region, docketed as Criminal Case No. 64079. 2 As consequence
thereof, a warrant for his arrest was issued on July 29, 1983, 3 but it remained
unserved as he could not be found.

Almost seven (7) years thereafter, or on June 5, 1990, Antonio Tujan was
arrested on the basis of the warrant of arrest in the subversion case. 4 When
arrested, an unlicensed .38 caliber special revolver and six (6) rounds of live
ammunition were found in his possession. 5

Consequently, on June 14, 1990, Antonio Tujan was charged with Illegal
Possession of Firearm and Ammunition in Furtherance of Subversion under
Presidential Decree No. 1866, as amended, before the Regional Trial Court of
Makati (Branch 148), docketed as Criminal Case No. 1789. The Information
reads:
"That on or about the 5th day of June, 1990, in the Municipality of
Parañaque, Metro Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, being a member of a
communist party of the Philippines, and its front organization, did then
and there willfully, unlawfully and feloniously have in his possession,
control and custody, in furtherance of or incident to, or in connection
with the crime of subversion, a special edition ARMSCOR PHILS. caliber
.38 special revolver with Serial No. 1026387 and with six (6) live
ammunitions, without first securing the necessary license or permit
thereof from competent government authority." 6

The above information recommended no bail for Antonio Tujan, which

recommendation was approved by the trial court in an Order dated June 19,
1990. 7 The same order also directed the continued detention of Antonio Tujan
at MIG 15 of the Intelligence Service of the Armed Forces of the Philippines
(ISAFP), Bago Bantay, Quezon City, while his case is pending.
On June 26, 1990, Antonio Tujan, through counsel, filed a motion 8
invoking his right to a preliminary investigation pursuant to Section 7, Rule 112
of the Revised Rules of Court and praying that his arraignment be held in
abeyance until the preliminary investigation is terminated.

However, on June 27, 1990, during the hearing of Antonio Tujan's motion
for preliminary investigation, his counsel withdrew the motion since he would
file a motion to quash the Information, for which reason counsel requested a
period of twenty (20) days to do so. This was granted by the trial court on that
same day. 9

On July 16, 1990, Antonio Tujan did file the motion to quash 10 the
Information in Criminal Case No. 1789 on the ground that he "has been
previously in jeopardy of being convicted of the offense charged" in Criminal
Case No. 64079 (for subversion) of the Regional Trial Court of Manila (Branch
45). The said ground is based on Sections 3 (h) and 7, Rule 117 of the 1985
Rules on Criminal Procedure. In support of the motion, Antonio Tujan contends
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 that "common crimes such as illegal possession of firearms and ammunition
should actually be deemed absorbed in subversion," 11 citing the cases of
Misolas vs. Panga, et al. (G.R. No. 83341, January 30, 1990, 181 SCRA 648) and
Enrile vs. Salazar, et al. (G.R. No. 92163, June 5, 1990, 186 SCRA 217).Antonio
Tujan then avers that "the present case is the twin prosecution" of "the earlier
subversion case" and, therefore, he "is entitled to invoke the constitutional
protection against double jeopardy." 12

The petitioner opposed 13 the motion to quash, arguing that Antonio Tujan
does not stand in jeopardy of being convicted a second time because (a) he has
not even been arraigned in the subversion case, and (b) the offense charged
against him in Criminal Case No. 64079 is for Subversion, punishable under
Republic Act No. 1700; while the present case is for Illegal Possession of
Firearm and Ammunition in Furtherance of Subversion, punishable under a
different law (Presidential Decree No. 1866). Moreover, petitioner contends that
Antonio Tujan's reliance on the Misolas and Enrile cases "is misplaced." 14 Tujan
merely relies on the dissenting opinions in the Misolas case. Also, the Enrile
case which involved a complex crime of rebellion with murder is inapplicable to
the instant case which is not a complex offense. Thus, the "absorption rule" as
held applicable in the Enrile ruling "has no room for application in the present
case because (illegal) possession of firearm and ammunition is not a necessary
means of committing the offense of subversion, nor is subversion a necessary
means of committing the crime of illegal possession of firearm and
ammunition." 15
The trial court, in an order dated October 12, 1990, granted the motion to
quash the Information in Criminal Case No. 1789, the dispositive portion of the
order reading:
"WHEREFORE, the motion to quash the information is hereby
GRANTED, but only in so far as the accused may be placed in jeopardy
or in danger of being convicted or acquitted of the crime of Subversion
and as a consequence the Information is hereby quashed and the case
dismissed without prejudice to the filing of Illegal Possession of
Firearm.

"SO ORDERED." 16

It is best to quote the disquisition of the respondent court in quashing the

information and dismissing the case:
"xxx xxx xxx

"In other words, the main offense the accused is being charged
in this case is also Subversion considering that the alleged Illegal
Possession of the Firearm and Ammunition is only in furtherance
thereof.
"Now, subversion being a continuing offense as has been
previously held by the Supreme Court, the fact that the accused has
been previously charged of Subversion before another court before the
institution of this instant case is just a continuing offense of his former
charge or that his acts constituting subversion is a continuation of the
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 acts he committed before.

"The court therefore cannot subscribe to the position taken by

the prosecution that this case is very different from the other case and
that double jeopardy will attach in this particular case.

"This court agrees with the position taken by the defense that
double jeopardy will attach to the accusation of subversion, punishable
now under Republic Act 1700, as Rule 117 of the Rules of Court
particularly Section 1 thereof, provides:

'Time to move to quash — At any time before entering his

plea, the accused may move to quash the complaint or
information. (1a)'
"In other words, there is no necessity that the accused should be
arraigned first before he can move to quash the information. It is
before he pleads which the accused did in this case.
"On the other submissions by the prosecution, that the
possession of firearms and ammunitions is not a necessary means of
committing the offense of subversion or vice versa, then if the court
follows such argument, there could be no offense of Illegal Possession
of Firearm and Ammunition in furtherance of Subversion, for even the
prosecution admits also that in subversion which is an offense
involving propaganda, counter propaganda, a battle of the hearts and
mind of the people does not need the possession or use of firearms and
ammunitions.
"The prosecution even admits and to quote:
'The defense of double jeopardy, while unquestionably
available to the accused, had not been clearly shown to be
invokable (sic) at this point in time.'
"But the rule says otherwise as previously stated as provided for
under Section 1 of Rule 117 of the Rules of Court.
"Thus, if ever the accused is caught in possession of a firearm
and ammunition which is separate and distinct from the crime of
subversion and is not a necessary ingredient thereof and the court
believed so, the prosecution will have to file another information as
they may wish. The court therefore has to grant the motion to quash
on the aforestated grounds, subject to Section 5 of Rule 117,
considering that the only offense to which the accused in this case may
be placed in jeopardy is Subversion and not Illegal Possession of
Firearms and Ammunitions.
"The prosecution may file any information as warranted within
ten (10) days from receipt of this order otherwise the court will order
the release of the accused, unless he is in custody for some other
offense." 17 (Emphasis ours)

Petitioner's motion for reconsideration 18 was also denied in an order

dated December 28, 1990. 19
The petitioner elevated the case to the Court of Appeals through a
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 petition for certiorari, docketed as CA-G.R. SP No. 24273. However, the
appellate court found that the trial court did not commit any grave abuse of
discretion amounting to lack or excess of jurisdiction in quashing the
questioned Information. In dismissing the petition, the appellate court, in its
decision dated May 27, 1991, basically reiterated the aforequoted ruling of the
trial court.

Petitioner now comes to this Court, claiming that: (1) the decision of the
Court of Appeals is not in accord with the law and applicable jurisprudence; and
(2) it was deprived of due process to prosecute and prove its case against
private respondent Antonio Tujan in Criminal Case No. 1789.
We agree with the petitioner.

The Court of Appeals considered as duplicitous the Information for

violation of P.D. No. 1866 filed against private respondent Antonio Tujan. It
ruled:
"The foregoing information (for Illegal Possession of Firearm and
Ammunition in Furtherance of Subversion) filed before the Makati court
shows that the main case is subversion considering that there is an
allegation that the alleged illegal possession of firearms was made 'in
furtherance of or incident to, or in connection with the crime of
subversion.' Also, the information alleged likewise that the accused is a
member of a communist party of the Philippines and its front
organization. Basically, the information refers to the crime of
Subversion qualified by Illegal Possession of Firearms. . . " 20

The ruling of the Court of Appeals is erroneous.

Section 1 of Presidential Decree No. 1866, under which Antonio Tujan is
charged in Criminal Case No. 1789 before the Regional Trial Court of Makati
(Branch 148), provides as follows:
"Section 1. Unlawful Manufacture, Sales, Acquisition,
Disposition or Possession of Firearms or Ammunition or Instruments
Used or Intended to be Used in the Manufacture of Firearms or
Ammunition. — The penalty of reclusion temporal in its maximum
period to reclusion perpetua shall be imposed upon any person who
shall unlawfully manufacture, deal in, acquire, dispose, or possess any
firearms, part of firearm, ammunition, or machinery, tool or instrument
used or intended to be used in the manufacture of any firearm or
ammunition. cdasia

"If homicide or murder is committed with the use of an

unlicensed firearms, the penalty of death shall be imposed.

"If the violation of this Section is in furtherance of, or incident to,

or in connection with the crimes of rebellion, insurrection or subversion
the penalty of death shall be imposed.
"The penalty of reclusion temporal in its maximum period to
reclusion perpetua shall be imposed upon the owner, president,
manager, director or other responsible officer of any public or private
firm, company, corporation or entity, who shall willfully or knowingly
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 allow any of the firearms owned by such firm, company, corporation or
entity to be used by any person or persons found guilty of violating the
provisions of the preceding paragraphs.
"The penalty of prision mayor shall be imposed upon any person
who shall carry any licensed firearm outside his residence without legal
authority therefor." (Emphasis ours)

The above-quoted provisions of P.D. No. 1866 are plain and simple. Under
the first paragraph of Section 1, the mere possession of an unlicensed firearm
or ammunition is the crime itself which carries the penalty of reclusion temporal
in its maximum period to reclusion perpetua. The third paragraph of the same
Section makes the use of said firearm and ammunition "in furtherance of, or
incident to, or in connection with the crimes of rebellion, insurrection or
subversion" a circumstance to increase t h e penalty to death. Thus, the
allegation in the Information in Criminal Case No. 1789 that the unlicensed
firearm found in the possession of Antonio Tujan, "a member of the communist
party of the Philippines and its front organization," was used "in furtherance of
or incident to, or in connection with the crime of subversion" does not charge
him with the separate and distinct crime of Subversion in the same Information,
but simply describes the mode or manner by which the violation of Section1 of
P.D. No. 1866 was committed 21 so as to qualify the penalty to death.
There is, therefore, only o n e offense charged in the questioned
information, that is, the illegal possession of firearm and ammunition, qualified
by its being used in furtherance of subversion. 22 There is nothing in P.D. No.
1866, specifically Section 1 thereof, which decrees categorically or by
implication that the crimes of rebellion, insurrection or subversion are the very
acts that are being penalized. This is clear from the title of the law itself which
boldly indicates the specific acts penalized under it:
"CODIFYING THE LAWS ON ILLEGAL/UNLAWFUL POSSESSION ,
MANUFACTURE, DEALING IN ACQUISITION O R DISPOSITION, OF
FIREARMS, AMMUNITION OR EXPLOSIVES OR INSTRUMENTS USED IN
THE MANUFACTURE OF FIREARMS, AMMUNITION OR EXPLOSIVES, AND
IMPOSING STIFFER PENALTIES FOR CERTAIN VIOLATIONS THEREOF AND
FOR RELEVANT PURPOSES." (Emphasis ours)

On the other hand, the previous subversion charge against Antonio Tujan
in Criminal Case No. 64079, before the Regional Trial Court of Manila (Branch
45), is based on a different law, that is, Republic Act No. 1700, as amended.
Section 3 thereof penalizes any person who "knowingly, willfully and by overt
act affiliates with, becomes or remains a member of a subversive association or
organization . . . " Section 4 of said law further penalizes "such member [of the
Communist Party of the Philippines and/or its successor or of any subversive
association.] (who) takes up arms against the Government." Thus, in the
present case, private respondent Antonio Tujan could be charged either under
P.D. No. 1866 or R.A. No. 1700, 23 or both.

This leads us to the issue of whether or not private respondent Antonio

Tujan was placed in double jeopardy with the filing of the second Information
for Illegal Possession of Firearm and Ammunition in Furtherance of Subversion.
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 We rule in the negative.
Article III of the Constitution provides:
"Sec. 21. No person shall be twice put in jeopardy of
punishment for the same offense. If an act is punished by a law and an
ordinance, conviction or acquittal under either shall constitute a bar to
another prosecution for the same act." (Emphasis ours)

Complementing the above constitutional provision, Rule 117 of the

Revised Rules of Court states:
"SEC. 7. Former Conviction or Acquittal; Double Jeopardy . —
When an accused has been convicted or acquitted, or the case against
him dismissed or otherwise terminated without his express consent by
a court of competent jurisdiction, upon a valid complaint or information
or other formal charge sufficient in form and substance to sustain a
conviction and after the accused had pleaded to the charge, the
conviction or acquittal of the accused or the dismissal of the case shall
be a bar to another prosecution for the offense charged, or for any
attempt to commit the same or frustration thereof, or for any offense
which necessarily includes or is necessarily included in the offense
charged in the former complaint or information.
xxx xxx xxx."

The right of an accused against double jeopardy is a matter which he may

raise in a motion to quash to defeat a subsequent prosecution for the same
offense. The pertinent provision of Rule 117 of the Revised Rules of Court
provides:
"SEC. 3. Grounds . — The accused may move to quash the
complaint or information on any of the following grounds:
xxx xxx xxx
(h) That the accused has been previously convicted or in
jeopardy of being convicted, or acquitted of the offense charged. (2a)"
(Emphasis ours)

In order that the protection against double jeopardy may inure to the
benefit of an accused, the following requisites must have obtained in the first
criminal action: (a) a valid complaint or information; (b) a competent court; (c)
the defendant had pleaded to the charge; 24 and (d) the defendant was
acquitted, or convicted, or the case against him was dismissed or otherwise
terminated without his express consent. 25
Suffice it to say that in the present case, private respondent's motion to
quash filed in the trial court did not actually raise the issue of double jeopardy
simply because it had not arisen yet. It is noteworthy that the private
respondent has not even been arraigned in the first criminal action for
subversion. Besides, as earlier discussed, the two criminal charges against
private respondent are not of the same offense as required by Section 21,
Article III of the Constitution.
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 It is clear from the foregoing, that the assailed decision of the Court of
Appeals is not in accordance with the law and jurisprudence and thus should be
reversed.

While we hold that both the subversion charge under R.A. No. 1700, as
amended, and the one for illegal possession of firearm and ammunition in
furtherance of subversion under P.D. No. 1866, as amended, can co-exist, the
subsequent enactment of Republic Act No. 7636 on September 22, 1992, totally
repealing R.A. No. 1700, as amended, has substantially changed the
complexion of the present case, inasmuch as the said repealing law being
favorable to the accused-private respondent, who is not a habitual delinquent,
should be given retroactive effect. 26

Although this legal effect of R.A. No. 7636 on private-respondent's case

has never been raised as an issue by the parties — obviously because the said
law came out only several months after the questioned decision of the Court of
Appeals was promulgated and while the present petition is pending with this
Court — we should nonetheless fulfill our duty as a court of justice by applying
the law to whomsoever is benefited by it regardless of whether or not the
accused or any party has sought the application of the beneficent provisions of
the repealing law. 27
T h a t R.A. No. 7636 should apply retroactively to accused-private
respondent is beyond question. The repeal by said law of R.A.. No. 1700, as
amended, was categorical, definite and absolute. There was no saving clause in
the repeal. The legislative intent of totally abrogating the old anti-subversion
law is clear. Thus, it would be illogical for the trial courts to try and sentence
the accused-private respondent for an offense that no longer exists. 28

As early as 1935, we ruled in People vs. Tamayo: 29

"There is no question that at common law and in America a much

more favorable attitude towards the accused exists relative to statutes
that have been repealed than has been adopted here. Our rule is more
in conformity with the Spanish doctrine, but even in Spain, where the
offense ceases to be criminal, prosecution cannot be had. (1 Pacheco
Commentaries, 296)" (Emphasis ours)

Where, as here, the repeal of a penal law is total and absolute and the act
which was penalized by a prior law ceases to be criminal under the new law,
the previous offense is obliterated. 30 It is a recognized rule in this jurisdiction
that a total repeal deprives the courts of jurisdiction to try, convict and
sentence persons charged with violation of the old law prior to the repeal. 31
With the enactment of R.A. No. 7636, the charge of subversion against
the accused-private respondent has no more legal basis and should be
dismissed.
As regards the other charge of illegal possession of firearm and
ammunition, qualified by subversion, this charge should be amended to simple
illegal possession of firearm and ammunition since, as earlier discussed,
subversion is no longer a crime.
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 Moreover, the offense of simple illegal possession of firearm and
ammunition is now bailable under Republic Act No. 8294 which was enacted on
June 6, 1997. R.A. No. 8294 has amended Presidential Decree No. 1866, as
amended, by eliminating the provision in said P.D. that if the unlicensed firearm
is used in furtherance of subversion, the penalty of death shall be imposed. 32
Under the new law (R.A. No. 8294), the penalty prescribed for simple illegal
possession of firearm (.38 caliber) is now reduced to prision correccional in its
maximum period and a fine of not less than Fifteen thousand pesos
(P15,000.00). 33 The reduced penalty of imprisonment — which is four (4)
years, two (2) months and one (1) day to six (6) years — entitles the accused-
private respondent to bail. Considering, however, that the accused-private
respondent has been detained since his arrest on June 5, 1990 up to the
present (as far as our record has shown), or more than seven (7) years now, his
immediate release is in order. This is so because even if he were convicted for
illegal possession of firearm and ammunition, the length of his detention while
his case is pending has already exceeded the penalty prescribed by the new
law.

WHEREFORE, the assailed decision of the Court of Appeals dated May 27,
1991, in CA-G.R. SP No. 24273, including the orders dated October 12, 1990
and December 28, 1990 of the Regional Trial Court of Makati (Branch 148),
National Capital Region, in Criminal Case No. 1789, are hereby REVERSED and
SET ASIDE.

The subversion charge against accused-private respondent Antonio A.

Tujan in Criminal Case No. 64079 of the Regional Trial Court of Manila, Branch
45, is hereby DISMISSED.

The other Information for illegal possession of firearm and ammunition in

furtherance of subversion against the same accused in Criminal Case No. 1789
of the Regional Trial Court of Makati, Branch 148, is DEEMED AMENDED to
Simple Illegal Possession of Firearm and Ammunition. The accused-appellant is
hereby ordered RELEASED IMMEDIATELY from detention for the reason stated
above, unless he is being detained for any other offense.

This decision is IMMEDIATELY EXECUTORY

No pronouncement as to costs.
SO ORDERED. cdasia

Narvasa, C .J ., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug,

Kapunan, Mendoza, Panganiban, Quisumbing and Purisima, JJ., concur.

Footnotes

1. Penned by then Associate Justice Justo P. Torres, Jr. and concurred in by then
Associate Justice Ricardo J. Francisco and Associate Justice Consuelo Ynares-
Santiago; Annex "N," Petition; Rollo , pp. 95-106.

2. Annexes "E" & "E-1," Petition; Rollo pp. 32, 38.

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 3. Rollo , p. 39.
4. Annexes "E" & "E-1," supra.
5. Ibid.
6. Annex "N," Petition; Rollo , pp. 98-99.

7. Annex "B," Petition; Rollo , p. 27.

8. Annex "C," Petition; Rollo , p. 28.

9. Annex "D," Petition; Rollo , p. 31.

10. Annex "E," Petition; Rollo , p. 32.

11. Rollo , p. 33.

12. Ibid., p. 34.
13. Annex "G," Petition; Rollo , p. 41.

14. Rollo , p. 43.

15. Rollo , p. 43.
16. Annex "H," Petition; Rollo , p. 45.

17. Annex "H," Petition; Rollo , pp. 48-50.

18. Annex "I," Petition; Rollo , p. 51.

19. Annex "J," Petition; Rollo , p. 55.

20. Rollo , p. 99.

21. See Tangan vs. People, et al., No. L-73963, November 5, 1987, 155 SCRA
435, 444.

22. See Misolas vs. Panga, et al., G.R. No. 83341 [En Banc], January 30, 1990,
181 SCRA 648.

23. Ibid., p. 655.

24. Gaspar vs. Sandiganbayan, 144 SCRA 416.
25. People vs. Obsania, 132 Phil. 782, 788; People vs. Santiago , 174 SCRA 143;
Ada vs. Virola, 172 SCRA 336; People vs. Pineda, 219 SCRA 1; People vs.
Vergara, 221 SCRA 560; Paulin vs. Gimenez , 217 SCRA 386.
26. Article 22, Revised Penal Code.
27. See People vs. Simon, G.R. No. 93028, July 29, 1994 (En Banc); 234 SCRA
555, 570-571, citing People vs. Moran, et al., 44 Phil. 387 [1923].

28. People vs. Tamayo, 61 Phil. 225, 227 [1935].

29. Ibid.
30. Ibid.
31. People vs. Sindiong, et al., 77 Phil. 1000; People vs. Jacinto, O.G., November
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 17, 1958, p. 7585, 7587.
32. Section I, par. 3, P.D. No. 1866, as amended.

33. Section I, par. I, R.A. No. 8294.

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