Dear PAO,

My uncle was shot dead while walking along the coastal area of our town in the province. The accused was later found guilty of murder. We were, however, surprised when we found out that the decision did not include the liability of the accused for the use of an unlicensed firearm. Should the perpetrator be tried separately for the use of an unlicensed firearm?

Joy

Dear Joy, To answer your question, we shall refer to Republic Act (RA) 10591, or the Comprehensive Firearms and Ammunition Regulation Act,” which states: “Section 29. Use of Loose Firearm in the Commission of a Crime. – The use of a loose firearm, when inherent in the commission of a crime punishable under the Revised Penal Code or other special laws, shall be considered as an aggravating circumstance: Provided, That if the crime committed with the use of a loose firearm is penalized by the law with a maximum penalty which is lower than that prescribed in the preceding section for illegal possession of firearm, the penalty for illegal possession of firearm shall be imposed in lieu of the penalty for the crime charged: Provided, further, That if the crime committed with the use of a loose firearm is penalized by the law with a maximum penalty which is equal to that imposed under the preceding section for illegal possession of firearms, the penalty of prision mayor in its minimum period shall be imposed in addition to the penalty for the crime punishable under the Revised Penal Code or other special laws of which he/she is found guilty. (Emphasis supplied) xxx In People vs. Cinco (GR 210710; 27 July 2016; Ponente: Associate Justice Jose Portugal Perez), the Supreme Court elucidated that the use of loose firearm shall be considered as an aggravating circumstance in the crime of murder: “The CA appropriately appreciated the use of an unlicensed firearm as an aggravating circumstance in the crimes of Murder and Frustrated Murder. Under RA 1059, use of loose firearm in the commission of a crime, like murder, shall be considered as an aggravating circumstance.

“In view of the amendments introduced by RA 8294 and RA 10591, to Presidential Decree 1866, separate prosecutions for homicide and illegal possession are no longer in order. Instead, illegal possession of firearm is merely to be taken as an aggravating circumstance in the crime of murder. It is clear from the foregoing that where murder results from the use of an unlicensed firearm, the crime is not qualified illegal possession but, murder.· In such a case, the use of the unlicensed firearm is not considered as a separate crime but shall be appreciated as a mere aggravating circumstance. Thus, where murder was committed, the penalty for illegal possession of firearms is no longer imposable since it becomes merely a special aggravating circumstance. The intent of Congress is to treat the offense of illegal possession of firearm and the commission of homicide or murder with the use of unlicensed firearm as a single offense.

“In the case at hand, since it was proven that accused-appellant was not a licensed firearm holder, and that he was positively identified by the witnesses as the one who fired shots against the victims, the use of an unlicensed firearm in the commission of the crimes of Murder and Frustrated Murder should be considered as an aggravating circumstance thereof.” Thus, the perpetrator cannot be considered to have committed a separate offense under RA 10591. In this case, the perpetrator is guilty of murder for the death of your uncle. Hence, the use of loose firearm shall be treated as an aggravating circumstance. It must be noted, however, that the use of loose firearm may be considered as an aggravating circumstance ONLY if such is specifically alleged in the information filed in court.

We hope that we are able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

We appreciate your trust and support.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected].