Appellant Alfredo Argawanon was accused of murder, together with Teodoro (Teddy) Sericon and Ernie Lambujon, in Criminal Case No. CBU-9546. Argawanon was also charged with theft in Criminal Case No. CBU-9514.

The two sets of information read, as follows:

"The undersigned Third Assistant Provincial Fiscal of Cebu, accuses Alfredo Argawanon y Bantilan of the crime of Theft, committed as follows:

"That on or about the 14th day of August, 1986 at around 4:20 o'clock in the afternoon, more or less, in Sitio Sumimbang, Barangay Bitoon, Municipality of Daanbantayan, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, said accused did then and there wilfully, unlawfully and feloniously, with intent of gain and without the consent of the owner thereof, take, steal and carry away from the dead body of Patrolman Aquiles Castro, an INP member of the Daanbantayan Police, Daanbantayan, Cebu, one (1) .38 caliber Smith and Wesson (WS) revolver, valued at SIX THOUSAND PESOS (P6,000.00), Philippine Currency, to the damage and prejudice of the Philippine Government in the aforesaid sum.

"CONTRARY TO LAW." (p. 24, Rollo.)

"The undersigned Third Assistant Provincial Fiscal of Cebu, accuses Alfredo Argawanon y Bantilan, Teddy Sericon alias "Junrey" and Ernie Lambujon y Dublin of the crime of Murder, committed as follows:

"That on or about the 14th day of August, 1986 at around 4:30 o'clock in the afternoon, more or less, in Sitio Sumimbang, Barangay Bitoon, Municipality of Daanbantayan, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, conspiring and confederating together and mutually helping one another, and armed with deadly weapons, to wit: two .45 Caliber pistols, did then there wilfully, unlawfully and feloniously, attack, assault and shoot therewith Patrolman Aquiles Castro twice at the back of the head, with treachery and evident premeditation; and as a result thereof, said Patrolman Aquiles Castro died instantly.

"CONTRARY TO LAW." (p. 25, Rollo.)

While the cases were pending with the trial court, appellant Argawanon escaped from detention while Teodoro Sericon remained at large. Ernie Lambujon was put on trial separately. He was found guilty of murder by the trial court (Criminal Case. No. CBU-9546). On appeal, however, to this Court, accused Lambujon was acquitted (People vs. Argawanon, 215 SCRA 652).

Sometime in 1989 and 1990, appellants Argawanon and Sericon were, respectively, arrested.

When arraigned, both accused pleaded, "not guilty." The trial proceeded thereafter.

On 14 January 1992, the trial court rendered a joint decision acquitting appellant Argawanon of theft (CBU-9514) but finding him and Teddy Sericon guilty of murder (CBU-9546). The two accused were sentenced, thus:

"WHEREFORE, in view of all the foregoing evidences, arguments and considerations, this Court hereby renders judgment finding the accused Teodoro Serecon and Alfredo Argawanon guilty beyond reasonable doubt of the crime of murder as charged--under Art. 248 of the RPC--the act of one being the act of all (Art. 8 RPC Par. 2)--as they are hereby sentenced to serve imprisonment of reclusion perpetua, with all accessory penalties provided for by law under Article 41 of the Penal Code and requiring them to indemnify the heirs of Achilles Castro jointly and solidarily in the amount of Fifty Thousand (P50,000.00) Pesos.

"Accused Alfredo Argawanon is hereby acquitted of the crime of theft for insufficiency of evidence.

"IT IS SO ORDERED." (p. 40, Rollo.)

From the judgment of conviction, only Alfredo Argawanon pursued an appeal to this Court.

We see merit in Argawanon's appeal.

In convicting appellant, the trial court relied almost entirely on the testimony of Jennies Castro, a brother of the victim, which it summarized, as follows:

Jennies Castro, testified that on 14 August 1986 at about three thirty in the afternoon, he and the victim Aquiles Castro, who is a member of the PNP, went to Sumimbang, Barangay Bitoon, Daanbantayan, Cebu in order to get a fighting cock from a certain Rowell Punay. However, Filomeno Punay (uncle of Rowell) informed them that Rowell was not there, so instead they asked for young coconuts. After partaking of the young coconuts, they proceeded towards the place where their motorcycle was parked and saw that a cockfight was going on thus, they stopped to watch the same (pp. 21-22, tsn). Jennies Castro stayed at a place which according to him is more or less six meters from his brother Aquiles who sat on a siniguelas branch near the road. His brother who remained seated conversed with one Carlito Gulfan and then the latter left and went towards the cockfight (p. 23, tsn). After which, he immediately heard a gunfire. Thus, he turned his head and he saw two men about one armslength away from his brother, holding firearms and whom he identified as Teodoro Sericon and Ernie Lambujon (pp. 23- 24, tsn).

On his way to the cornfields, he stopped for a while and turned his head to where the incident happened and there he saw four (4) persons including Alfredo Argawanon, who took the service firearm of his brother from the latter's waist, and fired it into the air. After he saw Argawanon fired the revolver into the air, he ran towards the highway and went home to Paypay, Daanbantayan where he informed the sixteen (16) year old son of his brother about the incident and instructed the latter to report the incident to the authorities. (p. 25, tsn, April 2, 1990.)

Quite strangely, the testimony of Jennies Castro established Argawanon's innocence rather than his guilt of the crime charged. Apparently, it was only after the victim was shot by an assailant when, for one reason or another, appellant took the service revolver of the fallen policeman and fired it into the air.

"Q.  Now you claimed that you saw Alfredo Argawanon fired the fifth shot, is that correct?

"A.   Yes, I saw him.

"Q.  And you claim that Alfredo Argawanon fired the gun in the air?

"A.   Yes, sir.

"Q.  He did not aim the gun at your brother?

"A.   No, sir.

"Q.  Did it occur to you that Argawanon fired a shot in order to let the assailant run?

"A.  No, sir, what I saw was Alfredo Argawanon took the revolver and fired the shot to the air." (p. 54, tsn, Cross Examination of Jennies Castro, 03 April 1990.)

This unexplained act of appellant might have been a clearly imprudent behavior on his part at the time but, susceptible, as it was, to varied possible reasons or interpretations, such act of appellant certainly could not by itself be inculpatory. (see People vs. Alzaga, 177 SCRA 644).

The record is bereft of any evidence to establish any conspiracy to kill the victim. Criminal conspiracy must always be founded on facts (People vs. Campos, 202 SCRA 387), and, like any other ingredient of an offense, it must be established by clear and convincing evidence (People vs. Laurio, 200 SCRA 489).

Serious dubiety could even be expressed on the fact of presence of Castro at the scene of the crime. He testified that as soon as he reached home, he informed only his 16-year old nephew, the son of the victim, whom he instructed to have the incident reported to the police "because he was very tired." He did not bother to immediately convey the matter to the victim's wife, parents and other brothers and sisters. It defies human experience, to say the least, that a person who just witnessed the shooting of his own brother would take it a matter-of-factly. In passing, this Court, in acquitting one of the alleged perpetrators, Ernie Lambujon (People vs. Argawanon, 215 SCRA 652, 664), had expressed its own disbelief in the testimony of Jennies Castro. The Court observed:

"Furthermore, if indeed the two (2) Castro brothers were watching the cockfight when the alleged four (4) persons attacked Pat. Castro, it is quite difficult to comprehend that, considering that he (witness) was only six (6) meters away from his brother, nothing was done to him as he was able to run and hide. It seems out of the ordinary that the assailants, allegedly, two (2) of them armed with .45 caliber pistols would let Jennies Castro (an eye witness to the killing) loose and not put him out of the way. It is also quite unbelievable that despite his said distance, he (Jennies Castro) was able to identify the accused-appellant and was able to hear one of the assailants shout, to wit: 'Ayaw mo pagdagan kay NPA ni.'"

A conviction in criminal cases must rest on nothing less than a moral certainty of guilt (People vs. Castro, 178 SCRA 274).

WHEREFORE, the judgment of conviction rendered by the trial court against Alfredo Argawanon is REVERSED, and he is ACQUITTED of the crime charged on reasonable doubt. The Court orders his immediate release from detention unless he is held for some other legal cause or reason to warrant his continued incarceration. Cost de oficio.

SO ORDERED.

Feliciano, Bidin, Romero, and Melo, JJ., concur.