344 Phil. 849
FRANCISCO, J.:
Sec. 3. Corrupt practices of public offaicers.- In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:The Information against him reads:
x x x x x x x x x
“(e) Causing any undue injury to any party, including the Government, or giving advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith, or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.”
That on or about August 7, 1988, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-mentioned accused, a public officer, being then the Assistant City Engineer of Davao City, taking advantage of his official position, with manifest partiality and bad faith in the discharge of his official duties, did then and there wilfully- (sic) unlawfully, and criminally, cause undue injury to the Republic of the Philippines by using for his personal benefit and advantage, to treasure hunt, one (1) unit Allis Backhoe, belonging to the City Government of Davao, without the knowledge, consent and authority from the latter, to the damage and prejudice of the City Government of Davao.Upon arraignment the petitioner pleaded not guilty and trial ensued. The prosecution presented its witnesses whose testimonies are succinctly summarized in the Comment filed by the Office of the Solicitor General (OSG), the pertinent portions of which we quote hereunder with approval.
CONTRARY TO LAW.”[1]
On August 1, 1988, Filemon Cantela was visiting his two “sisters-in-Christ” near the vicinity of the Guzman Estate at Matina District, Davao City when he chanced upon petitioner Simplicio Amper, Assistant City Engineer, Davao City, together with two others, scanning the area with the use of detector. After petitioner had left, he inquired and gathered from the landowner, Emilio Alvarez-Guzman, that petitioner and his companions were looking for hidden treasure and that they were planning to operate in the area with the use of a backhoe which is a heavy equipment used for excavating. Apprehensive that appellant, being the Assistant City Engineer, and as such had at his disposal the use of the city government-owned backhoe, might actually make use of the said equipment, he advised his “sister-in-Christ” to inform him if and when petitioner would actually resume his treasure hunting operation in the area. (TSN, April 11, 1991, pp. 14-19).The petitioner denied the allegations against him and asserted that contrary to Mayor Duterte’s claim that the use of the subject backhoe was unauthorized, the same was in fact officially leased by the Davao City government to Francisco Chavez of F.T. Chavez Construction, thus, its use on the private property of Segundo Tan was proper.[3] Public respondent Sandiganbayan found the foregoing asseveration to be without merit considering that petitioner was caught en flagrante delicto directing the use and operation of the said backhoe for his own treasure hunting operations. Furthermore, the petitioner failed to present either Francisco Chavez or Segundo Tan to corroborate his testimony that the backhoe subject of the instant case was the same backhoe which Francisco Chavez rented from the city government.[4]
“On August 6, 1988, around 6:00 o’clock in the afternoon (sic), Cantela was informed by his “sister-in-Christ” that petitioner and five others were earlier in the area clearing the premises and preparing to resume their treasure hunting operation that night. Together with Mike Lusenara and Marcelo Gervacio, Jr. of the Civil Security Unit, he prepared to conduct a surveillance on petitioner and his companions that evening (Ibid., pp.19-20).
“They went to the area at about 8:30 in the evening and discreetly waited for the arrival of petitioner and his companions. Around 11:30 in (sic) the same evening, petitioner arrived on board a Toyota Land Cruiser, together with two others who were on board another vehicle. Shortly, after the arrival of petitioner and his companions, a backhoe, bearing inscription on its sides that it is owned by the city government of Davao City, arrived (Ibid., pp. 22-26). The backhoe was being operated by Tobias Porta, a heavy equipment operator assigned at the City Engineer’s Office, who was with his assistant, Timoteo Borongan. Thereafter, Porta, upon the instruction of petitioner, began to excavate the area with the use of the backhoe. Cantela requested Henry Adriano to go to the house of Davao City Mayor Rodrigo Duterte and inform him of petitioner’s illegal activity (Ibid., pp. 27-30).
“Around 2:15 in the morning of August 7, 1988, Mayor Duterte arrived, together with several policemen, and surprised petitioner and his companions who were still in the act of excavating the area. However, before the Mayor could actually order their arrest, some of petitioner’s companions scampered, leaving only petitioner, Porta and Borongan (Ibid., p. 31).
“Thereupon, Mayor Duterte ordered Porta to stop the engine of the backhoe and confronted him as to what he was digging in the area. Porta replied that he was ordered by appellant to dig for gold. Mayor Duterte likewise confronted Borongan, who upon being asked the same question, gave the same reply (Ibid.).
“Duterte ordered one of the members of the Civil Security Unit to pick up petitioner, who was then sitting in his vehicle parked nearby. Mayor Duterte confronted petitioner and shortly thereafter, ordered petitioner, Porta and Borongan to follow him to the Tolomo Police Station (Ibid., p. 32).
“Mayor Duterte declared that there are four (4) backhoes owned by the city government of Davao City including the subject backhoe; that he checked it out with the Office of the City Engineer and he found out that no permission was granted to petitioner to use the subject backhoe for private purposes (TSN, April 29, 1993, p. 12).
“While in the past, the use of the city government-owned backhoe for private purposes was allowed upon payment of the corresponding rental, Mayor Duterte disallowed the same during his administration because the city government which had so many projects to undertake needed those equipment for the aforesaid projects. He allowed the lease of the city-government-owned backhoes to private individuals but not as matter of policy and only in extreme cases upon payment of rental (Ibid.).”[2]
Petitioner himself testified that he asked Tobias Porta to operate the backhoe at the behest of Segundo Tan, who about one or two days before August 7, 1988, requested him to look for a backhoe operator, because he would be installing reinforced concrete culverts along his property at the J.P. Laurel, McArthur Highway, Davao City. However, Mayor Rodrigo Duterte, City Mayor of Davao City caught petitioner en flagrante delicto directing the use and operation of the backhoe, not for the purpose of installing reinforced concrete culverts but for his own personal gold treasure hunting operation (TSN, April 29, 1993, p.9). Assuming, therefore, that the testimonies of Francisco Chavez and Segundo Tan may be admitted as newly discovered evidence, petitioner can still be held liable for unauthorized use of the backhoe, because he was not himself authorized to use the backhoe for treasure hunting operation; thus, causing the government of Davao City undue injury because of the undue wear and tear caused to the said equipment.”[16]As a last recourse, the petitioner insists that the testimonies of Francisco Chavez and Segundo Tan should be admitted as newly discovered evidence since the Sandiganbayan relied on the adverse presumption arising from their non-presentation in convicting him. This contention is unfounded and misleading. It is true that according to the Sandiganbayan, the failure on the part of the defense to present these vital witnesses without offering any valid reason therefor, raised the presumption that the testimonies of Francisco Chavez and Segundo Tan would be adverse to petitioner’s interest if they were actually presented. However, as discussed earlier, the petitioner’s conviction was based on the overwhelming and unrebutted evidence of his positive identification by the prosecution witnesses, and not, as petitioner would have us believe, on the presumption that the testimonies of Francisco Chavez and Segundo Tan if presented would be adverse to the defense’s case. There is, in fact, only one short paragraph in the entire nineteen (19) page decision of the Sandiganbayan which adverts to the non-presentation of Francisco Chavez and Segundo Tan as witnesses for the defense.[17] A close scrutiny of the assailed decision reveals that the antecedent facts of this case as culled from the testimonies of the witnesses were painstakingly established by the ponente[18] in order to arrive at the correct conclusions both of fact and of law. We cannot, thus, subscribe to the petitioner’s view and reduce the said decision into a conviction premised on an erroneous presumption.