The new law, Republic Act No. 8294,^[1] approved barely two months ago (June 6, 1997) which has lowered the penalty for illegal possession of firearms finds application in instant case to favor the accused so as to immediately release him from jail where he has already served nine (9) years, nine (9) months and twenty-three (23) days, which is well beyond the maximum penalty now imposed for his offense. Whereas prior to the passage of this law, the crime of simple illegal possession of firearms was penalized with reclusion temporal in its maximum period to reclusion perpetua,^[2] after its enactment, the penalty has been reduced to prision correccional in its maximum period and a fine of not less than Fifteen Thousand Pesos (P15,000.00).^[3]

Being favorable to the accused, this newly-enacted law constitutes an exception to the fundamental doctrine that laws should be applied prospectively. Further applying the Indeterminate Sentence Law, petitioner should be penalized with four (4) years, two (2) months and one (1) day as minimum, to six (6) years as maximum. Petitioner, therefore, holds the “distinction” of being the first beneficiary of this reduced penalty to favor him with its retroactive application.

The following recital of facts constitutes the backdrop for the application of the new law.

Two separate informations were filed against petitioner Reynaldo Gonzales y Rivera involving the crimes of attempted homicide and violation of Presidential Decree No. 1866.

The Information for Attempted Homicide reads as follows:

“The undersigned Provincial Fiscal accuses Reynaldo Gonzales y Rivera of the crime of attempted homicide, penalized under the provisions of Article 249 in connection with Article 51 of the Revised Penal Code, committed as follows:

That on or about the 20th day of May, 1984, in the municipality of San Ildefonso, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a gun (Revolver, Caliber .22, Paltik) and with intent to kill one Jaime Verde, did then and there wilfully, unlawfully and feloniously commenced the commission of homicide directly by overt acts, by then and there shooting with the said gun the said Jaime Verde, and if the said accused did not accomplish his purpose, that is, to kill the said Jaime Verde, it was not because of his spontaneous desistance, but the shot missed him and instead hit the ground.

Contrary to law.”

The Information for violation of P.D. No. 1866 reads:

“The undersigned Provincial Fiscal accuses Reynaldo Gonzales y Rivera of the crime of illegal possession of firearm, penalized under Presidential Decree No. 1866, committed as follows:

That on or about the 20th day of May, 1984, in the municipality of San Ildefonso, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said accused Reynaldo Gonzales y Rivera, did then and there wilfully, unlawfully, and feloniously have in his possession and control one (1) Revolver, Caliber .22 (Paltik, without first obtaining the proper license or authority therefor).

Contrary to law.”

A plea of not guilty having been entered, trial on the merits ensued.

The case for the prosecution is as follows:

On May 20, 1984, Jaime, Dionisio, and Zenaida all surnamed Verde were in front of their house when, at about six o’clock in the evening, petitioner Reynaldo Gonzales and a certain Bening Paguia arrived in the premises. Without any provocation, petitioner started to hurl invectives at Zenaida and pushed her. Surprised at the unprovoked attack, Jaime tried to restrain the petitioner but instead of allowing himself to be subdued, the latter turned on the former. Pulling out his gun, he fired the same at Jaime but missed his mark. The incident was thereafter reported to the police authorities which conducted a paraffin test that showed that petitioner’s right hand was positive for gunpowder residue.

On the other hand, the version of the defense was as follows:

Petitioner testified that on the said date and time, he was with his barrio mates when suddenly, a commotion attracted their attention. They saw a group of persons chasing an unidentified person who was running towards their direction with a gun in hand while the mob was shouting “Harangin.” During the chase, the unidentified person accidentally fell and dropped the gun he was holding which petitioner then grabbed.

The fleeing person hastily boarded a passing bus. It was at this point that the Verdes, who turned out to be the persons giving chase, demanded the gun from the petitioner who, however, refused to surrender the same, as a result of which, a scuffle ensued during which the gun accidentally went off without hitting anybody.

After trial, the court a quo acquitted the petitioner of the offense of attempted homicide but found him guilty of the offense of illegal possession of firearm, the dispositive portion of which reads:^[4]

“WHEREFORE, premises considered, for failure of the prosecution to prove the guilt of Reynaldo Gonzales beyond reasonable doubt of the charge for Attempted Homicide, he is hereby acquitted of the crime charged.

With respect to the charge of Illegal Possession of Firearms, the Court finds the accused guilty beyond reasonable doubt and hereby sentences him to a penalty ranging from 17 years, 4 months, 1 day to 18 years, 8 months of Reclusion Temporal, without pronouncement as to costs.”

Upon appeal to the Court of Appeals, the petitioner asserted that the trial court erred in not giving credence to the defense’s narration of the incident and his guilt has not been proven beyond reasonable doubt. This argument did not persuade the appellate court as it held that:^[5]

“Indeed, as correctly found by the trial court, the appellant did not grab the revolver (paltik) in question (Exhibit A) from the unidentified person that he said. He drew it from his pocket and intentionally fired it at Jaime Verde but missed him. He was, therefore, in possession of it. And since it was a ‘paltik’ for which no license to possess may be issued (People vs. Fajardo, 17 SCRA 494), he is guilty of illegal possession of firearm under Presidential Decree No. 1866. Accordingly, the trial court did not commit any error in finding him guilty as charged.”

In the instant petition, petitioner assigns the following errors to the trial court:

1. There is in this case material and substantial conflict between the version of the prosecution and that of the defense that would lead a reasonable mind to believe the improbability of the version of the prosecution.

2. Respondent Court of Appeals committed a grave and serious error of law in not finding/holding that the prosecution miserably failed to establish the motive that would support the version of the prosecution.

3. Petitioner was not aware of any preliminary investigation that would create any inference adverse to his innocence.

4. The prosecution in this case failed to prove the guilt of the petitioner beyond reasonable doubt. Hence, the latter is entitled to acquittal.

We affirm the findings of the trial court and the Court of Appeals.

The main thesis of petitioner’s defense is that he inadvertently picked up the gun accidentally dropped by an unidentified person who was being chased by the Verdes. Thus, he cannot be convicted for illegal possession of firearm.

Completely contradicting petitioner’s version, we quote with approval the trial court’s finding:^[6]

“The testimony that the gun came from the unarmed (should be unidentified) person who fell in front of him while being chased is again hard to believe. The natural reaction of a person being chased in a hostile place is to remove hindrances along his way. If he had a gun, as the accused would want the court to believe, he could have used it against all persons who would block his way since there were shouts ‘harangin, harangin.’ On the other hand, the actuation of the accused is contrary to common observation and experience. No person in his right mind would approach a person holding a gun being chased and there were shouts ‘harangin, harangin.’”

In addition, petitioner’s narration is not in conformity with human experience and reactions. We likewise note the incredible assertion of the petitioner that the unidentified person, after tripping and dropping the gun, was able to board a “slow moving” bus without even attempting to retrieve his weapon. Such a hollow tale hardly commends itself to our mind.

Also, petitioner bewails the fact that no preliminary investigation was conducted. While the right to preliminary investigation is one that is statutorily granted and not mandated by the Constitution, still it is a component part of due process in criminal justice^[7] that may not be treated lightly, let alone ignored. It has been consistently held, however, that its absence does not impair the validity of the criminal information or render it defective. In any case, dismissal of the case is not the remedy.^[8] It is incumbent on the trial court to hold in abeyance the proceedings upon such information and to remand the case to the fiscal to conduct a preliminary investigation if the accused actually makes out a case justifying the same.^[9]

Conversely, it is a well-settled rule that the right to a preliminary investigation may be waived by the failure to invoke it prior to or at least at the time of the accused’s plea.^[10] Thus, when the petitioner entered a plea to the charge,^[11] he is deemed to have waived the right to preliminary investigation.^[12]

Having set aside the procedural aspect of this petition, we now proceed to determine whether the petitioner is indeed guilty of the offense of illegal possession of firearm.

In cases involving illegal possession of firearm, there are certain well-established principles, namely: (a) the existence of the subject firearm and (b) the fact that the accused who owned or possessed the firearm does not have the corresponding license or permit to possess.^[13] The first requisite is beyond dispute as the subject firearm was recovered, identified and offered in evidence during trial.^[14] With respect to the second requisite, the same was undisputably proven by the prosecution. The unvarying rule is that ownership is not an essential element of illegal possession of firearms and ammunition. What the law requires is merely possession which includes, not only actual physical possession, but also constructive possession or the subjection of the thing to one’s control and management.^[15]

In the instant petition, there is no doubt that the petitioner is indeed guilty of having intentionally possessed an unlicensed firearm. The testimony of the petitioner that he came into possession of the firearm only after a scuffle, is a lame defense which cannot overcome the solid evidence presented by the prosecution proving his guilt beyond reasonable doubt. On this score, we note that a prosecution witness testified that petitioner pulled the gun from his waist and fired a shot aimed at Jaime Verde’s foot.^[16]

Thus, we have no reservations in affirming petitioner’s conviction since we find no compelling reason to depart from the factual findings of both the trial court and the respondent appellate court which are, as a rule, accorded great respect and finality.^[17]

As regards the penalty imposed by the trial court and affirmed by the appellate court (17 years, 4 months, 1 day to 18 years, 8 months of reclusion temporal), we reduce the same in view of the passage of R.A. No. 8294 wherein the penalty for simple illegal possession of firearms has been lowered. Since it is an elementary rule in criminal jurisprudence that penal laws shall be given retroactive effect when favorable to the accused,^[18] we are now mandated to apply the new law in determining the proper penalty to be imposed on the petitioner.

While prior to the passage of R.A. No. 8294, the crime of simple illegal possession of firearm was penalized with reclusion temporal in its maximum period to reclusion perpetua, after its enactment, the penalty was reduced to prision correccional in its maximum period and a fine of not less than Fifteen Thousand Pesos (P15,000.00).

Accordingly, applying the Indeterminate Sentence Law, the principal penalty for the offense of simple illegal possession of firearm is four (4) years and two (2) months as minimum, to six (6) years, as maximum^[19] and a fine of P15,000.00. Consistent with the doctrine that an appeal in a criminal case throws the whole case open for review, the appellate court may, applying the new law, additionally impose a fine, which if unpaid, will subject the convict to subsidiary imprisonment, pursuant to Art. 39 of the Revised Penal Code.^[20]

WHEREFORE, the decision of the Court of Appeals sustaining petitioner’s conviction by the lower court of the crime of simple illegal possession of firearm is AFFIRMED, with the MODIFICATION that the penalty is reduced to “four (4) years and two (2) months, as minimum, to six (6) years, as maximum.”

Since the petitioner has already served nine (9) years, nine (9) months and twenty-three (23) days, which is well beyond the maximum principal penalty imposed for his offense, as well as the subsidiary penalty for the unpaid fine, he is hereby ordered RELEASED immediately, unless he is being held for some other lawful cause.
SO ORDERED.

Regalado, (Chairman), Puno, Mendoza, and Torres, Jr., JJ., concur.

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^[1] An Act Amending The Provisions of Presidential Decree No. 1866, as amended, entitled “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] P.D. No. 1866. 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.

“SECTION 1. Unlawful Manufacture, Sale, 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 firearm, part of firearm, ammunition or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition.”

^[3] R.A. No. 8294. “SECTION 1. Unlawful Manufacture, Sale, 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 prision correccional in its maximum period and a fine of not less than Fifteen Thousand Pesos (P15,000.00) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or.32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided, That no other crime was committed.”

^[4] Penned by Judge Narcero T. Atienza.

^[5] Ramirez, P., ponente, Ordoñez-Benitez and Rasul, JJ., concurring.

^[6] Rollo, p. 35.

^[7] Go v. Court of Appeals, 206 SCRA 138 (1992).

^[8] Socrates v. Sandiganbayan, 253 SCRA 773 (1996).

^[9] Sanciangco, Jr. v. People, 149 SCRA 1 (1987).

^[10] People v. Gomez, 117 SCRA 73 (1982).

^[11] Decision, Rollo, p. 33.

^[12] People v. Umberro, 196 SCRA 821 (1991).

^[13] People v. Lualhati, 234 SCRA 325 (1994).

^[14] Rollo, p. 34.

^[15] People v. De Garcia, 233 SCRA 716 (1994).

^[16] Rollo, p. 34.

^[17] People v. Cahindo, G.R. No. 121778, January 27, 1997.

^[18] Article 22, Revised Penal Code.

^[19] Sec. 1, Act No. 4103, as amended.

^[20] Art. 39. Subsidiary penalty. – If the convict has no property with which to meet the fine mentioned in paragraph 3 of the next preceding article, he shall be subject to a subsidiary personal liability at the rate of one day for each eight pesos, subject to the following rules:

1. If the principal penalty imposed be prison correccional or arresto and fine, he shall remain under confinement until his fine referred in the preceding paragraph is satisfied, but his subsidiary imprisonment shall not exceed one-third of the term of the sentence, and in no case shall it continue for more than one year, and no fraction or part of a day shall be counted against the prisoner.