1

Republic of the Philippines)

City of Zamboanga )s.s.
X-------------------X

COUNTERAFFIDAVIT

I, MOHAMMAD BANDAHALA y (middle name), of legal age,

married, Filipino citizen and a resident of Ruste San Roque,
Zamboanga City, Philippines, after having been duly sworn to in
accordance with law hereby depose and say that;

1. I am one of the Respondents in NPS Docket No. IX-06-INQ-

16G-00660 for alleged Violation of Sections 5 and 11, of
Republic Act 9165 otherwise known as the Comprehensive
Dangerous Drugs Act, Violation of Republic Act 10591
otherwise known as the Illegal Possession of Firearm and
Ammunitions and Republic Act 9516 otherwise known as the
Illegal Possession of Explosive pending before the Office of the
City Prosecutor of Zamboanga City. I received the copy of
Subpoena of the Honorable Office dated 29 July 2016 on the
same day. However, I was able to engage the services of a
counsel only last 08 August 2016, thus, on the same day, I filed
through counsel an Ex-Parte Motion for Extension of Time to
file and submit my Counter-Affidavit and Affidavit of Witnesses
and/or supporting documents praying for additional ten (10)
days or until 18 August within which to file and submit the
same. In connection therewith, I was able to sign and submit a
waiver of Article 125 of the Revised Penal Code before the
Honorable Office. Hence, in compliance with the Subpoena of
the Honorable Office, I hereby submit my Counter Affidavit and
in support hereof, it is most respectfully alleges that:
2. Foremost, I vehemently deny and condemn the baseless and
unfounded accusations leveled against me by SPO4 AMADO A.
MIRASOL, JR., SPO4 MONTASIL H. AMIRUL and SPO3
GLENN A. BINARAO considering that at the time of my arrest,
my Constitutional Rights were violated and that I was not even
engaged in the selling or in possession of any illegal drug and I
was not in possession of any firearm or fragmentation grenade
that were allegedly confiscated from my possession. The truth of
the whole incident is narrated hereunder as follows:

3. I am an operator/driver of a rented Public Utility Van (PUV for

brevity) for more or less twelve (12) years now;
4. On 27 July 2016, I was watching a television at our house of
the entire morning while waiting for my wife to come home.
Thereafter, I suddenly received a phone call from my friend
named KAWSAL who is my friend for seven (7) years now
 2

and also a driver of a PUV in Ayala, this city. He asked me if I

can meet him down town to accompany him to get his motor-
vehicle, to which I agreed. Thereafter, I immediately called my
friend JONATHAN I. FERNANDEZ (JONATHAN for brevity) to
confirm if he was also invited by KAWSAL to go with us which
he answered in the affirmative;

5. Thereafter, on or about 1:00 oclock in the afternoon, I left the

house to meet KAWSAL down town. When I arrived at the city
proper, I proceeded to Masters Bake Shop and immediately
gave JONATHAN a call purposely to ask his location.
Thereafter, he answered my call and told me that he was
already in a nearby store so I waited for him at the bakeshop;

6. JONATHAN and I decided to wait KAWSAL at the fire station

at Mayor Climaco Avenue, this City. After more or less (5)
minutes, KAWSAL arrived together with his companion named
MARK. Thereafter, KAWSAL told us that we are going to get
his motor-vehicle at Triplet Street, San Jose Road, this City.
Before we proceeded to get said motor-vehicle, I heard
KAWSAL calling someone named JUN/JUL on his mobile
phone, while saying in a Tausug dialect HARAP MAWUN NA
KAMI which in English more or less means we are on our
way;

7. Thereafter, we boarded on a Yamaha motor-vehicle? Or

motorcycle? Naa ba SUV Yamaha? and proceeded to Triplet
Street, this City, while leaving MARK behind considering that
according to him he was suffering from stomachache, thus, he
cannot go with us;

8. On or about 4:00 oclock in the afternoon after passing through

Triplet Street, we reached DIAMOND pension house situated in
Canelar Moret, this City. We entered said pension house and
proceeded to room number three (3) and KAWSAL
immediately opens the sliding wooden gate of the garage and I
noticed that there was no motor-vehicle inside, so I immediately
asked KAWSAL if where was his motor-vehicle, however, he
told me that it was just there and commanded us to just go
inside of the room;
9. Thereafter, we went inside the room and when I sat down on
the other side of the bed, to my surprise, I suddenly saw more
or less five (5) unidentified persons went outside of the comfort
room and another three (3) persons swiftly appeared in front of
us. I immediately asked KAWSAL what was happening, but he
just ignored me while saying to the one of the unidentified
persons in a Tagalaog dialect YAN NA ANG TINUTUKOY KO
SA INYO, YANG DALAWA, which in English more or less
 3

means THOSE ARE THE TWO PERSONS I AM REFERRING

TO. One of them shouted on us while asking me and
JONATHAN to duck. One of them also asked me if I was in
possession of a gun which I answered in the negative;
10. Thereafter, they handcuffed me together with JONATHAN.
They loaded us on a certain Crosswind motor-vehicle while
KAWSAL boarded on the other motor-vehicle. While inside the
said motor-vehicle, they covered our eyes using a packing tape
and later on found out that they brought us to Police Regional
Office 09 (PRO 09 for brevity), this City. When we arrived at
PRO 09, they immediately frisked us, however, they found
nothing. Thereafter, one of the personnel swiftly put a gun
inside the blue sling bag which I did not give much attention
because I saw KAWSAL from the window of the nearby office
being freed and they immediately covered again my eyes using
a packing tape and detained us at the said station;

11. On 28 July 2016 in the morning, they brought us to

Zamboanga City Police Station 11, this City. Thereafter, upon
arrival at the said station they showed me a piece of plastic
containing a white crystalline substance, one (1) cal.38 revolver
with six (6) rounds live ammunitions and one (1) fragmentation
grenade and which they insisted that it was confiscated in our
possession which I strongly deny considering that I have no
knowledge of all of those alleged pieces of evidence;
12. I hereby declare under oath that I did not violate Section 5 and
11 of Republic Act 9165, Violation of Republic Act 10591 and
Republic Act 9516 considering that at the time of my arrest, I
was not even engaged in the selling of any illegal drug and I
was not in possession of any firearm or fragmentation grenade;
13. Moreover, it is respectfully submitted that I was illegally
arrested, considering that the arresting officers were not armed
with a Warrant of Arrest and that the circumstances surrounding
my arrest does not fall under any of the conditions set forth in
Section 5, Rule 113 of the Revised Rules of Criminal Procedure
which provides that:
A peace officer or a private person may, without a
warrant, arrest a person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to
commit an offense;
(b) When an offense has in fact just been committed, and
he has personal knowledge of facts indicating that the
person to be arrested has committed it; and
 4

(c) When the person to be arrested is a prisoner who has

escaped from a penal establishment or place where he
is serving final judgment or temporarily confined while
his case is pending, or has escaped while being
transferred from one confinement to another.

14. From the above-quoted provision, it is clear therefore that my

arrest was illegally done, considering that based on the
foregoing facts and circumstance surrounding my arrest that I
was just asked by KAWSAL to help him get his motor-vehicle
at Triplet Street, San Jose Road which he later brought me
together with JONATHAN to Diamond Pension House where
we were arrested by unidentified personnel which later
identified themselves as Police Officers. It is submitted that I did
not commit the crime and/or offense for which I am being
charged;
15. In the case of People of the Philippines vs. Idel Aminuddin
(G.R. No. 74869 July 6, 1988), the Supreme Court held:
In the case at bar, the accused-appellant was not,
at the moment of his arrest, committing a crime nor
was it shown that he was about to do so or that he
had just done so. What he was doing was
descending the gangplank of the M/V Wilcon 9 and
there was no outward indication that called for his
arrest. To all appearances, he was like any of the
other passengers innocently disembarking from the
vessel. It was only when the informer pointed to him
as the carrier of the marijuana that he suddenly
became suspect and so subject to apprehension. It
was the furtive finger that triggered his arrest. The
Identification by the informer was the probable cause
as determined by the officers (and not a judge) that
authorized them to pounce upon Aminnudin and
immediately arrest him.
16. In the case at bar, there was no warrant of arrest or search
warrant issued by a judge after personal determination by him
of the existence of probable cause. Contrary to the averments
of the government, herein Respondent was not caught in
flagrante nor was a crime about to be committed or had just
been committed to justify the warrantless arrest allowed under
Rule 113 of the Rules of Court.

17. Moreover, the act of searching my person and my bag was a

violation of Section 2 and Section 3(2) of Article III of the 1987
Constitution which provides, to wit:
 5

Section 2. The right of the people to be secure in their persons,

houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for
any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the
judge after examination under oath or affirmation of
the complainant and the witnesses he may produce,
and particularly describing the place to be searched
and the persons or things to be seized.

Section 3 (2). Any evidence obtained in violation of this or the

preceding section shall be inadmissible for any
purpose in any proceeding.

18. After cursory reading of the above-mentioned

Constitutional provisions, assuming without admitting that the
alleged one (1) piece of plastic containing a white crystalline
substance, one (1) cal.38 revolver with six (6) rounds live
ammunitions and one (1) fragmentation grenade were allegedly
confiscated from my person, the same must be deemed
inadmissible in evidence considering the acts perpetrated by
the Arresting Police Officers were in violation of the above-
quoted constitutional provisions as they were not even armed
with any search warrant;
19. Moreover, assuming arguendo, that I was in possession
of an illegal drug, one (1) cal.38 revolver with six (6) rounds live
ammunitions and one (1) fragmentation grenade, it is important
to note that possession is defined as a state of mind on the part
of the possessor whereby he intends to exercise, and a
consequence of which, he does exercise a right of possession,
whether that right be legal or otherwise; and while the intention
and the will to possess may be, and usually are, inferred from
the fact that the thing in question is under the apparent power
and control of the alleged possessor, nevertheless, the
existence of the animus possidendi is subject to contradiction,
and may be rebutted by evidence which tends to prove that the
thing in question appears to be does not in fact exercise such
power of control and does not intend to do so. Hence, it is
apparent in this case, that I had no power or control over the
alleged illegal drug nor the drug paraphernalia as it was never
taken and/or confiscated from my person;
20. Assuming arguendo that the alleged one (1) heat-sealed sachet
containing crystalline substance one (1) cal.38 revolver with six
(6) rounds live ammunitions and one (1) fragmentation grenade
which were allegedly confiscated from my person, said
allegation is deemed questionable, considering that the
 6

arresting officers failed to comply with the requisites set forth in

Sec. 21 Paragraph 1 of R.A. 9165, which provides:

The apprehending team having initial custody and

control of the drugs shall, immediately after seizure
and confiscation, physically inventory and
photograph the same in the presence of the accused
or the person/s from whom such items were confiscated
and/or seized, or his/her representative or counsel, a
representative from the media and the Department of
Justice (DOJ) and any elected public official who shall
be required to sign the copies of the inventory and be
given a copy thereof.
21. The above-mentioned provision is essential in the
determination of the authenticity of the evidence at hand, which
in this case would be the one (1) piece heat-sealed sachet
containing white crystalline substance confirmed to be shabu;
22. The above-quoted provision is mandatory and it is respectfully
submitted that the inventory was not immediately conducted at
the place of arrest and that I was not even present during the
alleged inventory if any was indeed conducted nor was I even
notified that such inventory was made and I was not even made
to sign said inventory. Moreover, assuming arguendo that an
alleged inventory was made, the procedure runs contrary to the
provisions of Sec. 21 Paragraph 1 of R.A. 9165 considering that
same was conducted at the Zamboanga City Police Office 11,
Governor Lim Avenue, this city and not at the time and place of
my arrest and that no representative from the Department of
Justice nor a representative from the Media were present at the
time when the inventory was conducted. Hence, culled from this
facts, it is submitted that the Police Officers miserably failed to
present clear, concrete and convincing pieces of evidence that
would establish a proper chain of custody that would link me to
the one (1) piece heat-sealed sachet containing white
crystalline substance, one (1) cal.38 revolver with six (6) rounds
live ammunitions and one (1) fragmentation grenade. No
evidence was presented to that effect;

23. In the case of the People of the Philippines vs. Ale, (145
SCRA 50), the Supreme court held:

24. XXX By the very nature of anti-narcotics operations, the

need for entrapment procedures, the use of shady characters
as informants, the ease with which sticks of marijuana or grams
of heroin can be planted in pockets or hands of unsuspecting
provincial hicks, and the secrecy that inevitably shrouds all drug
deals, the possibility of abuse is great. Court must also be extra
 7

vigilant in trying drug charges lest an innocent person is made

to suffer the unusually severe penalties for drug offenses.

25. After cursory reading of the above-mentioned

jurisprudence, it is submitted that I was not selling nor was I in
possession of any illegal drug at the time of my arrest and that
the only time I saw the one (1) piece heat-sealed sachet
containing white crystalline substance allegedly confirmed to be
shabu and drug paraphernalia was when one of the Arresting
Officer showed it to me and when I was brought to the Central
Police Station, Governor Lim, this city;

26. Further, at the time of my arrest I was not even informed

of my constitutional rights which is in clear violation of Section
12 of Article III of the 1987 Constitution which provides that:

(1) Any person under investigation for the commission of

an offense shall have the right to be informed of his
right to remain silent and to have competent and
independent counsel preferably of his own choice. If
the person cannot afford the services of counsel, he
must be provided with one. These rights cannot be
waived except in writing and in the presence of
counsel.

XXXX

(2) Any confession or admission obtained in violation of

this or Section 17 hereof shall be inadmissible in
evidence against him.

XXXX

27. I hereby declare under oath that there was no Buy-Bust

Operation conducted last 3 June 2015 and I was not engaged
in the sale of any illegal drug nor was I in possession of any
illegal drug, one (1) cal.38 revolver with six (6) rounds live
ammunitions and one (1) fragmentation grenade and that I am
person of good moral character and shall never allow myself to
do such an unlawful acts;

28. I execute this Counter-Affidavit to attest to the truth of the

foregoing facts based on personal knowledge and authentic
records in compliance with the Subpoena of the Honorable
Office. It is thus requested that the instant case docketed as
NPS Docket No. IX-06-INQ-15F-00537 be dismissed for utter
lack of merit as the foregoing facts may constitute.
 8

IN WITNESS WHEREOF, I have hereunto set my hand on this

___ day of August 2016 at Zamboanga City, Philippines.

IBRAHIM D. JAWADI
Affiant

SUBSCRIBED AND SWORN to before me this ___ day of

August 2016 in the City of Zamboanga, Philippines.

CERTIFICATION

I HEREBY CERTIFY that I have personally examined herein

Affiant and that I am satisfied that he voluntarily executed and
understood the contents of his Counter-Affidavit.