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Assailed in this petition for review under Rule 45 of the Revised Rules of Court is the June 6, 2002 Decision^[1] of the Court of Appeals and its May 23, 2003 Resolution which denied petitioners’ motion for reconsideration.

The Punzalan and the Plata families were neighbors in Hulo Bliss, Mandaluyong City.  At around 11:00 p.m. of August 13, 1997, Dencio dela Peña, a house boarder of the Platas, was in front of a store near their house when the group of Rainier Punzalan, Randall Punzalan, Ricky Eugenio, Jose Gregorio, Alex “Toto” Ofrin, and several others arrived.  Ricky Eugenio shouted at Dela Peña, “Hoy, kalbo, saan mo binili and sumbrero mo?”^[2] Dela Peña replied, “Kalbo nga ako, ay pinagtatawanan pa ninyo ako.”^[3] Irked by the response, Jose Gregorio slapped Dela Peña while Rainier punched him in the mouth.  The group then ganged up on him.  In the course of the melee, somebody shouted, “Yariin na ‘yan!”^[4] Thereafter, Alex “Toto” Ofrin kicked Dela Peña and tried to stab him with a balisong but missed because he was able to run.  The group chased him.

While Dela Peña was fleeing, he met Robert Cagara, the Platas’ family driver, who was carrying a gun.  He grabbed the gun from Cagara and pointed it to the group chasing him in order to scare them.  Michael Plata, who was nearby, intervened and tried to wrestle the gun away from Dela Peña.  The gun accidentally went off and hit Rainier Punzalan on the thigh.  Shocked, Dela Peña, Cagara and Plata ran towards the latter’s house and locked themselves in.  The group ran after them and when they got to the Platas’ house, shouted, “Lumabas kayo d’yan, putang ina ninyo! Papatayin namin kayo!”^[5]  Dela Peña, Cagara, and Plata left the house through the back door and proceeded to the police station to seek assistance.

As a result of the incident, Rainier Punzalan filed a criminal complaint against Michael Plata for Attempted Homicide^[6] and against Robert Cagara for Illegal Possession of Firearm.  In turn, Plata, Cagara and Dela Peña filed several counter-charges^[7] for grave oral defamation, grave threats, robbery, malicious mischief and slight physical injuries against the Punzalans, including one for Attempted Murder filed by Dela Peña against Rainier and Randall Punzalan and fourteen others (I.S. No. 97-11528); and one for Grave Threats filed by Dela Peña against Alex “Toto” Ofrin (I.S. No. 97-11520-21).

In their counter-affidavit,^[8] the Punzalans argued that the charges against them were fabricated in order to dissuade them from testifying in the Attempted Homicide and Illegal Possession of Firearm cases instituted by Rainier against Plata and Cagara, respectively.

Subsequently, Robert Cagara also filed a complaint for Grave Oral Defamation, docketed as I.S. No. 97-11522, against Rosalinda Punzalan, mother of Rainier, alleging that on October 16, 1997 at the Office of the Prosecutor of Mandaluyong City, Rosalinda approached him, and within hearing distance of other people, told him, “Hoy Robert, magkanong ibinigay ng mga Plata sa iyo sa pagtestigo?  Dodoblehin ko at ipapasok pa kita ng trabaho.”^[9] In her defense, Rosalinda denied having uttered the alleged defamatory statements.

On July 28, 1998, the Assistant City Prosecutor of Mandaluyong City dismissed the complaint for Grave Oral Defamation against Rosalinda Punzalan,^[10] holding that Cagara failed to show that the alleged defamatory statements would cast dishonor, discredit or contempt upon him.  He also found that the statements were uttered by Rosalinda in a state of distress and, hence, were not actionable.^[11] The charge of Attempted Murder against Rainier, Randall and 14 others was also dismissed by the Assistant Prosecutor because complainant Dela Peña’s claim    that he accidentally shot Rainier forms part of the defense of Michael Plata in the Attempted Homicide case previously filed by Rainier against the latter.^[12]

Dela Peña and Cagara separately appealed to the Department of Justice.  On March 23, 2000, then Justice Secretary Artemio Tuquero issued a Resolution modifying the July 28, 1998 Joint Resolution of the Assistant City Prosecutor by ordering, among others – (1) that the charge of Grave Oral Defamation against Rosalinda Punzalan be downgraded to Slight Oral Defamation; (2) that the charge of Attempted Murder against Rainier, Randall and 14 others be downgraded to Attempted Homicide; and (3) that the charge of Grave Threats against Alex “Toto” Ofrin be downgraded to Other Light Threats.  The dispositive portion of the Resolution reads:

WHEREFORE, the resolution is hereby MODIFIED.  The City Prosecutor of Mandaluyong City is directed to file information for three (3) counts of slight oral defamation against Rosalinda Punzalan; information for two (2) counts [of] other light threats against Alexander “Toto” Ofrin; information for attempted homicide against Alexander “Toto” Ofrin, Rainier Punzalan, Jose Gregorio Lanuzo, Avelino Serrano, Lito dela Cruz, Emmanuel Nobida, Randall Punzalan, Mark Catap, Ricky Eugenio, Alejandro Diez, Vicente Joven Manda, Herson Mendoza, Mark Labrador, Alex Pascua, Edwin Vivar and Raymond Poliquit; information for malicious mischief and theft against Rainier Punzalan, Mark Catap, Alejandro Diez, Jose Gregorio Lanuzo, Alexander “Toto” Ofrin, Herson Mendoza, Emmanuel Nobida, Edwin Vivar, Avelino “Bobby” Serrano, and John Does; and to report action taken within 10 days from receipt hereof.

SO ORDERED.^[13]

Petitioners, Rosalinda, Rainier and Randall Punzalan, together with their co-respondents, filed separate motions for reconsideration.  On June 6, 2000, the Secretary of Justice set aside the March 23, 2000 Resolution and directed the withdrawal of the Informations against the movants.  He ruled, among others, that the Oral Defamation case should be dismissed because the alleged defamatory statements were uttered without malice as Rosalinda was then in a state of shock and anger.   Anent the Attempted Homicide case filed by Dela Peña against Rainier, the Secretary held that the allegations in support thereof should first be threshed out in the trial of the Attempted Homicide case filed by Rainier against Michael Plata.  He added that Dela Peña failed to prove that Rainier, Randall and his companions intended to kill him.  The dispositive portion thereof reads:

Wherefore, in view of the foregoing, the appealed resolution is REVERSED.  The resolution dated March 23, 2000 is set aside and the City Prosecutor of Mandaluyong City is directed to withdraw the separate informations for slight oral defamation, other light threats, attempted homicide, malicious mischief and theft against all respondents and to report the action taken within ten (10) days from receipt hereof.

SO ORDERED.^[14]

Respondents filed a motion for reconsideration of the foregoing Resolution, but the same was denied in a Resolution dated October 11, 2000.^[15]

On January 11, 2001, respondents filed a petition for certiorari with the Court of Appeals praying that the City Prosecutor of Mandaluyong be directed to file one count of Slight Oral Defamation against Rosalinda; one count of Attempted Homicide against Rainier, Randall and 14 others; and two counts of Other Light Threats against Alex “Toto” Ofrin.^[16]

On June 6, 2002, the Court of Appeals rendered judgment as follows:

WHEREFORE, premises considered, the petition is granted and the questioned Resolutions of public respondent dated 06 June 2000 and 11 October 2000 are set aside insofar as it directed the withdrawal of informations for slight oral defamation against Rosalinda Punzalan and attempted homicide against the respondents Alexander “Toto” Ofrin, Rainier Punzalan, Jose Gregorio Lanuzo, Avelino Serrano, Lito de la Cruz, Emmanuel Nobido, Randall Punzalan, Mark Catap, Ricky Eugenio, Alejandro Diez, Vicente “Joven” Manda, Herson Mendoza, Mark Labrador, Alex Pascua, Edwin Vivar, and Raymond Poliquit.

The resolution dated 06 June 2000 and 11 October 2000 is hereby affirmed insofar as it directed the withdrawal of information for two (2) counts of other light threats against Alexander “Toto” Ofrin.

SO ORDERED.^[17]

Petitioners’ motion for reconsideration was denied.^[18] Hence, the instant petition raising the following assignment of errors:

I

THE HONORABLE COURT OF APPEALS COMMITTED GRAVE AND SERIOUS REVERSIBLE ERROR IN SETTING ASIDE THE RESOLUTIONS OF THE HONORABLE SECRETARY OF JUSTICE DATED JUNE 6, 2000 AND OCTOBER 11, 2000.

II

THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN HOLDING THAT THERE IS SUFFICIENT EVIDENCE TO SHOW THAT, MORE LIKELY THAN NOT, SLIGHT ORAL DEFAMATION HAD BEEN COMMITTED AND WAS COMMITTED BY HEREIN PETITIONER ROSALINDA PUNZALAN.

III

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT THE ALLEGATIONS OF RESPONDENTS AND THEIR WITNESSES, WHICH SHOULD BE GIVEN WEIGHT, ARE SUFFICIENT TO PROVE INTENT TO KILL SUCH THAT PETITIONERS RANDALLL AND RAINIER PUNZALAN MUST BE PROSECUTED FOR ATTEMPTED HOMICIDE.^[19]

The issue to be resolved in this petition is whether or not there is sufficient evidence to sustain a finding of probable cause against petitioner Rosalinda Punzalan for Slight Oral Defamation and against petitioners Randall and Rainier Punzalan for Attempted Homicide.

The petition is impressed with merit.

The pertinent law in relation to this case is Section 1 of Rule 65 of the Rules of Court, which provides:

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

A petition for certiorari is the proper remedy when any tribunal, board, or officer exercising judicial or quasi-judicial functions has acted without or in excess of its jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction and there is no appeal, nor any plain, speedy, and adequate remedy at law.  Where the error is in the judge’s findings and conclusions or to cure erroneous conclusions of law and fact, appeal is the remedy.^[20]

Lack of jurisdiction and excess of jurisdiction are distinguished thus: the respondent acts without jurisdiction if he does not have the legal power to determine the case; where the respondent, being clothed with the power to determine the case, oversteps his authority as determined by law, he is performing a function in excess of his jurisdiction.^[21] In the case of Meat Packing Corp. v. Sandiganbayan,^[22] it was held that grave abuse of discretion implies a capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, when the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty enjoined or to act at all in contemplation of law.  It is not sufficient that a tribunal, in the exercise of its power, abused its discretion; such abuse must be grave.^[23]

We now resolve whether the Secretary of Justice committed grave abuse of discretion in his Resolutions dated June 6, 2000 and October 11, 2000.  Under the Revised Administrative Code, the Secretary of Justice exercises the power of direct control and supervision over the decisions or resolutions of the prosecutors. “Supervision and control” includes the authority to act directly whenever a specific function is entrusted by law or regulation to a subordinate; to direct the performance of duty; and to approve, revise or modify acts and decision of subordinate officials or units.^[24]

In the case of People v. Peralta,^[25] we reiterated the rule that the right to prosecute vests the prosecutor with a wide range of discretion – the discretion of whether, what and whom to charge, the exercise of which depends on a variety of factors which are best appreciated by prosecutors.  Likewise, in the case of Hegerty v. Court of Appeals,^[26] we declared that:

A public prosecutor, by the nature of his office, is under no compulsion to file a criminal information where no clear legal justification has been shown, and no sufficient evidence of guilt nor prima facie case has been presented by the petitioner.

We need only to stress that the determination of probable cause during a preliminary investigation or reinvestigation is recognized as an executive function exclusively of the prosecutor.  An investigating prosecutor is under no obligation to file a criminal action where he is not convinced that he has the quantum of evidence at hand to support the averments.  Prosecuting officers have equally the duty not to prosecute when after investigation or reinvestigation they are convinced that the evidence adduced was not sufficient to establish a prima facie case.  Thus, the determination of the persons to be prosecuted rests primarily with the prosecutor who is vested with discretion in the discharge of this function.

Thus, the question of whether or not to dismiss a complaint is within the purview of the functions of the prosecutor and, ultimately, that of the Secretary of Justice.

The reasons of the Secretary of Justice in directing the City Prosecutor to withdraw the informations for slight oral defamation against Rosalinda Punzalan and for attempted homicide against the other respondents other than Rosalinda Punzalan is determinative of whether or not he committed grave abuse of discretion.

First, in the charge of slight oral defamation, the records show that the defamatory remarks were uttered within the Office of the City Prosecutor of Mandaluyong City.  The Court of Appeals in its Decision dated June 6, 2002 stated the settled rule that the assessment of the credibility of witnesses is best left to the trial court in view of its opportunity to observe the demeanor and conduct of the witnesses on the stand.  The City Prosecutor, the proper officer at the time of the occurrence of the incident, is the best person to observe the demeanor and conduct of the parties and their witnesses and determine probable cause whether the alleged defamatory utterances were made within the hearing distance of third parties.  The investigating prosecutor found that no sufficient evidence existed.  The Secretary of Justice in his Resolution affirmed the decision of the City Prosecutor.

As to the charge of attempted homicide against the herein petitioners other than Rosalinda Punzalan, the Secretary of Justice resolved to dismiss the complaint because it was in the nature of a countercharge.  The Department of Justice in a Resolution dated June 18, 1998 had already directed that Dencio Dela Peña be likewise investigated for the charge of attempted homicide in connection with the shooting incident that occurred on August 13, 1997 making him a party to the case filed by Rainier Punzalan.  This resulted in the resolution of the Secretary of Justice that the complaint of herein respondent Dencio Dela Peña should be threshed out in the proceedings relevant to the shooting incident that resulted in the serious injury of herein petitioner Rainier Punzalan.

In the case at bar, therefore, the Secretary of Justice did not commit grave abuse of discretion contrary to the finding of the Court of Appeals.  It is well-settled in the recent case of Samson, et al. v. Guingona^[27] that the Court will not interfere in the conduct of preliminary investigations or reinvestigations and leave to the investigating prosecutor sufficient latitude of discretion in the exercise of determination of what constitutes sufficient evidence as will establish probable cause for the filing of information against an offender.  Moreover, his findings are not subject to review unless shown to have been made with grave abuse.^[28]

WHEREFORE, the petition is GRANTED.  The Decision of the Court of Appeals dated June 6, 2002 and the Resolution dated May 23, 2003 denying petitioners’ motion for reconsideration are REVERSED and SET ASIDE.  The Resolution of the Secretary of Justice, directing the withdrawal of the informations for slight oral defamation and attempted homicide against the petitioners, is REINSTATED.

No pronouncement as to costs.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Quisumbing, Carpio, and Azcuna, JJ., concur.

---

^[1] Rollo, p. 44. Penned by Associate Justice Bienvenido L. Reyes and concurred in by Associate Justices Roberto A. Barrios and Edgardo F. Sundiam.

^[2] Sumbong-Salaysay, Rollo, p. 202.

^[3] Id.

^[4] Id.

^[5] Id., p. 203.

^[6] Punzalan v. Plata, A.M. No. MTJ-00-1310, 18 December 2001, 372 SCRA 534, 535-536.

^[7] Joint Resolution, Rollo, p. 99.

^[8] Rollo, pp. 251 & 222.

^[9] Sinumpaang Salaysay, Rollo, p. 249.

^[10] Rollo, p. 95.

^[11] Id., p. 99.

^[12] Id., p. 100-101.

^[13] Resolution, Rollo, pp. 145-146.

^[14] Id., p. 169.

^[15] Rollo, p. 197.

^[16] Id., pp. 91-92.

^[17] Id., p. 60.

^[18] Id., p. 62.

^[19] Id., p. 18.

^[20] People v. Chavez, 411 Phil. 482, 491 (2001).

^[21] Regalado, Florenz B., Remedial Law Compendium, Vol. 1, 1997 Ed., p. 705.

^[22] G.R. No. 103068, 22 June 2001, 359 SCRA 409, 421; citing Akbayan-Youth, et al. v. Comelec, G.R. Nos. 147066 & 147179, 26 March 2001, 355 SCRA 318, 341.

^[23] Benito v. Comelec, G.R. No. 134913, 19 January 2001, 349 SCRA 705, 714.

^[24] Aurillo, Jr. v. Rabi, G.R. No.120014, 26 November 2002, 392 SCRA 595, 603.

^[25] People v. Peralta, G.R. No. 121234, 8 August 2002, 387 SCRA 45, 64; citing Webb v. De Leon, 317 Phil. 758 (1995).

^[26] G.R. No. 154920, 15 April 2003.

^[27] G.R. No. 123504, 14 December 2000, 348 SCRA 32, 37; citing Camanag v. Guerrero, 335 Phil. 945, 969 (1997).

^[28] Joaquin, Jr. and BJ Productions v. Drilon, et al., 361 Phil. 900, 908 (1999).