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In order to determine the scope of reference for confirmation of death sentence under section 374, Cr. P. C., some cases from Indian jurisdiction can be referred. In the case of Juman and others v. State (P L D 1957 S C (Ind.) 381), it is held that for confirmation of death sentence, the entire case is open before the High Court and it is the duty of the High Court to satisfy itself whether the case beyond reasonable doubt is made out for infliction of death penalty. In the case of Rama Shankar Sing and others v. State (A I R 1962 S C 1239) it is held that while hearing the reference for confirmation of death sentence, High Court has power to appraise the evidence and may arrive at conclusion after reconsideration of evidence. In the case of Masalti and others v. State (A I R 1965 S C 202) it is held that while hearing reference for confirmation of death sentence judicial approach in dealing with such cases has to be cautious, circumspect and careful. High Court has to carefully examine all relevant and material circumstances before confirming sentence of death. All arguments urged by appellants and all material infirmities must be scrupulously examined and considered before final decision is reached.

From the cases cited above, it appears that exercise of dealing with reference of confirmation of death sentence is onerous and requires deep and careful scrutiny of the whole case, evidence available therein and the law points involved. Normally when the appeal is also heard side by side alongwith reference then the requirements of reference of confirmation of death sentence are automatically met and a common judgment is delivered for disposing of both appeal as well as reference.

Position becomes entirely different when the convict absconds and becomes fugitive from justice. In that cases he disentitles himself from hearing of appeal. The question with regard to what will happen to reference for confirmation of death sentence in such circumstances came up for consideration before High Court in the case of Khanan Khan and others v. State (P L D 1966 Pesh. 232). Question arose whether reference for confirmation of death sentence could be heard in the absence of appellants who became absconders. It was held that there was no legal requirement that confirma tion proceedings shall take place while convict is present or is available or is within the reach of the Court. It was further held that there were no limitations whatsoever on the High Court to finalize the matter of confirma tion except that it has to wait till the time provided for appeal has expired or if an appeal has been filed till it is disposed of. Consequently merits were considered, evidence was appraised and death sentence was confirmed. This decision of the High Court in appeal was affirmed by the Supreme Court in the case entitled Gul Hassan and another v. State (PLD 1969SC89). 1t has been held therein that the appellant who is absconding and does not submit to the due process of justice, forfeits his right of audience and his appeal may be disposed of and reference under section 374, Cr. P. C. may be confirmed in his absence. In 1981 this question with regard to appeal and reference for confirmation of death sentence came up for consideration before the Supreme Court of Pakistan in the case of Hayat Bakhsh and others v. State (PLD1981SC265), as well as in 1981 S C M R I. In this very elaborate judgment the whole case-law on the subject has been referred and noticed including the case of Gul Hassan and another. About the confirmation of death sentence, it has been held that in spite of the fact that convict while decamping had forfeited his right of audience, nevertheless it was competent for the High Court to consider the case of confirmation of his death sentence and confirm the same on merits. The relevant portion (P L D 1981 S C 265 at p. 280) is reproduced as under:-

"Apart from the foregoing principles laid down in the case of Chan Shah, these aspects were further elaborated in Gul Hassan's case: if a person is fugitive from justice and is in the state of abscondence, an appeal cannot be filed on his behalf on the basis of a power of attorney executed by him before his abscondence and the same would apply to a power of attorney executed during abscondence; that a fugitive in effect, in view of the principles laid down in the case of C4an Shah, is also a contemner and further that he is not entitled to hearing; that even if it is case of confirmation of death sentence under section 374, Cr. P. C. if the convict decamps, he thereby forfeits the right of audience and the High Court would, in such situation, be competent to consider the case of confirmation of his death sentence and confirm the same even in his absence the confirmation of course will have to be on merits of the case."

It is, therefore, clear that the Supreme Court has laid down that the High Court is competent to consider confirmation of death sentence of absconding appellant and can confirm the same on merits.

Upshot of this discussion in the light of rulings cited above is that appellant absconds and becomes fugitive from justice, his right of hearing is forfeited and in consequence his appeal could be dismissed straightaway without hearing. The same proposition would not apply to a reference for confirmation of death sentence for which duty is enjoined upon the High Court to dispose of the same strictly on merits and according to law regardless of the fact whether there is appeal or not alongwith reference. High Court is competent to confirm death sentence of absconding convict on merits. Consideration on merits would include opposite view as well. It further appears that in the case of absconding convict High Court cannot reject reference and set aside death sentence because that will amount to run counter to and negate the principle that Court would not act in aid of a person, who is fugitive from justice and whose right of hearing stands forfeited. Furthermore, postponement of hearing of reference is also not expressly barred. Such order can be passed under inherent, power of the High Court under section 561-A, Cr. P. C.