The Court of Appeals ruled that the fact that Arenas shouted Apaya (perhaps a shortened form of apay aya, which is more accurately translated in Filipino as bakit ba) showed that he was probably surprised to see Aviles trying to get inside the jeepney which was moving slowly because of heavy traffic. The testimony of Contapay that after hearing Arenas shout Apaya, he saw Aviles already stabbing Arenas, showed that the attack was sudden and unexpected.
The Supreme Court agrees with Aviles on this score. Although Contapay testified that he turned around immediately when the deceased shouted Apaya, he did not testify as to how the attack was initiated. Also, considering that he was driving the jeepney when Arenas was attacked, he could not even have known how the attack was initiated.
For treachery to be appreciated, it must be present at the inception of the attack. If the attack is continuous and treachery was present only at a subsequent stage and not at the inception of the attack, it cannot be considered. Rather than being an expression of surprise at the presence of Aviles as held by the Court of Appeals, the shout Apaya orApay aya, when translated as Bakit ba, connotes confusion as to why the person to whom it is spoken is acting the way he is acting. This implies the lapse of several moments between the commencement of the attack and Arenas shouting.
Qualifying circumstances must be proven beyond reasonable doubt as the crime itself. It cannot be considered on the strength of evidence which merely tends to show that the victim was probably surprised to see the assailant trying to get inside the jeepney. (G.R. No. 172967; December 19, 2007)