04/02/2020 E-Library - Information At Your Fingertips: Printer Friendly Q: Now, Mr. Witness, when these two (2) persons followed you and your companions, what did you observe from them that time? A: They have (sic) guns, sir. Q: What kind of guns do (sic) they have? A: Short and black, sir. Q: And were they holding their guns? A: They were holding their guns, sir x x x x Q: After you were made to fall in line, what happened next? A: He pointed a gun, sir. Q: Who pointed the gun to whom? A: The thin man pointed his gun at Leandro Adawan, sir. Q: What else transpired after that? A: They fired their guns at us, sir. Q: Who shot at who (sic)? A: The two (2) of them, sir, because there were two of them.[29] On cross examination, Clemente testified Q: So, you said on that date you were frisked and then later on lined-up and when you heard successive shots, you fell down? A: When I heard the three (3) successive shots, I saw one pointing the gun again at me, so, I turned around and prepared to run, but I was hit, sir. When I turned my back and started to run, I was hit, sir. Q: So, because you turned your back, you did not really see who actually shot you? A: I saw the thin one point the gun at me and both were armed with guns, sir x x x x Q: So, you want to tell the court that it was the thin one who shot you because he was holding the gun that way, is that correct? A: I do not know because both of them have (sic) guns, sir. But I saw the thin one pointing a gun at me, sir.[30] Thus, as to the identity of the gunman, it is apparent that both witnesses were positive only as far as Bangcado was concerned. However, it seems that they only concluded that Banisa participated in the shooting because he was also holding a gun. The failure of the surviving victims to assert with confidence that Banisa also fired his gun raises reasonable doubt as to whether he participated in the shooting. Accused-appellants deny the existence of treachery, nighttime and abuse of public position to aggravate the commission of the crimes. It is settled that qualifying circumstances cannot be presumed but must be established by clear and convincing evidence, as conclusively as the killing itself.[31] The defense alleges that there is no evidence that accused-appellants made some preparation to kill the victim in such a manner as to insure the execution of the crime or to make it impossible or hard for elibrary.judiciary.gov.ph/thebookshelf/showdocsfriendly/1/37955 8/16