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ARMM Judicial Region
BRACH 5, Ampaslupa City, Maguindawin




-versusWITH RAPE (ART. 248
Lindol Ampaslupa Jr., Lindol Ampaslupa Sr.,
Datu Andal Unsay, et. al.


COMES NOW, the accused by the undersigned counsel and unto

this Honorable Court respectfully submits that:
1. Based on the evidence and information of both the accused
and private complainants, including the Information and
Prosecutor's Resolution prepared by the Honorable City Prosecutor
of , the accused herein move to quash the information on the
following grounds: "That the facts charged do not constitute an
offense." and "That the information charges more than one
2. The accused-movants submits that an information must charge
only one offense. Based on the face and the body of the
information, the information charges the crime of Murder under

Article 248 and the crime of Rape under Article 266 of the Revised
Penal Code. On those grounds alone, the information must be
quashed since it will violate the accused-movants right to due
process for failure to follow the prescribed procedure under the
Rules of Court. 3. The crime of Murder is not necessary to the
crime of rape in it's execution. Hence, it cannot be considered as
a complex crime or a special complex crime with the crime of
murder, the essential elements of both crimes being different
from each other and not necessary as to it's commission, to wit:
"Article 266-A. Rape: When And How Committed. Rape is committed:
"1) By a man who shall have carnal knowledge of a
woman under any of the following circumstances:
"a) Through force, threat, or intimidation;
"b) When the offended party is deprived of reason or
otherwise unconscious;
"c) By means of fraudulent machination or grave abuse
of authority; and
"d) When the offended party is under twelve (12) years
of age or is demented, even though none of the
circumstances mentioned above be present.
"2) By any person who, under any of the circumstances
mentioned in paragraph 1 hereof, shall commit an act
of sexual assault by inserting his penis into another
person's mouth or anal orifice, or any instrument or
object, into the genital or anal orifice of another person.
Article 248. Murder. - Any person who, not falling within
the provisions of Article 246 shall kill another, shall be

guilty of murder and shall be punished by reclusion

temporal in its maximum period to death, if committed
with any of the following attendant circumstances:
1. With treachery, taking advantage of superior
strength, with the aid of armed men, or employing
means to weaken the defense or of means or persons
to insure or afford impunity.
2. In consideration of a price, reward, or promise.
3. By means of inundation, fire, poison, explosion,
shipwreck, stranding of a vessel, derailment or assault
upon a street car or locomotive, fall of an airship, by
means of motor vehicles, or with the use of any other
means involving great waste and ruin.
4. On occasion of any of the calamities enumerated in
the preceding paragraph, or of an earthquake, eruption
of a volcano, destructive cyclone, epidemic or other
public calamity.
5. With evident premeditation.
6. With cruelty, by deliberately and inhumanly
augmenting the suffering of the victim, or outraging or
scoffing at his person or corpse.
3. Hence, considering that the elements of murder are completely
different from the elements of rape, the information must be
quashed on the ground that it charges more than one offense.
4. Further, the accused submits that an information must state
every single fact necessary to constitute the offense charged.
Based on the factual and legal assessment of the facts presented,
the essential elements as alleged and as defined by law were not
sufficiently shown. Given those circumstances, it is but only
proper that the prosecution refrain from pursuit since the

Honorable Court would be burdened by baseless accusations not

worthy of a fuller examination.

5. Considering that the sworn statements of LakmudinSaliao

(Exhibit A) and Noh Akil (Exhibit B contain glaring discrepancies
which the Honorable Prosecutor should have disallowed. Saliao
states that he was shooed away. However, he abruptly begins to
state the immediately preceding events that took place, without
clearly stating the cicumstances as to how he was able to witness
the murder. Further, Noh Akil states that the events that took
place were on a different date from the date of the commission of
the crime.

6. As a matter of fact, accused-movants were with Wendy during

the time of the incident. As proof of the matter, said person has
executed an affidavit to such fact. Furthermore, to date, her
affidavit has not been refuted.
7. That the accused has filed a motion for judicial determination
of probable cause to impress upon the Honorable Court that no
probable cause exist to warrant the prosecution of the accused for
any offense. The complaint-affidavit and the resolution clearly
shows that without admitting to the allegations in the complaintaffidavits and in the information, the Honorable Prosecutor has
failed to show probable cause. The facts clearly show that an
offense has been committed but the same facts do not show that
accused-movants perpetrated the offense. Hence, where no facts
were shown that constitute murder or rape, necessarily there
would be no legal basis to institute any criminal information.
When it is clear that the information does not really charge an
offense, the case against the accused must be dropped
immediately instead of subjecting him to anxiety and
inconvenience of a useless trial. The accused is entitled to such

consideration and indeed, even the prosecution will benefit from

such dismissal because it can then file a corrected information
provided the accused liability has not yet attached. There is no
point of proceeding under a defective information that can never
be the basis of a valid conviction. (Cruz vs. Court of Appeals, G.R.
No. 93754, February 18, 1991)

WHEREFORE, it is most respectfully beseeched of this

Honorable Court that the above arguments be considered and the
case dismissed since the facts charged do not constitute and