Humna Amjad VS Umer Saeed etc

ORDER SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

Writ Petition No.4333 of 2026 Mst. Hamna Amjad Versus Umar Saeed and another S. No. of order/ Date of order/ Order with signature of Judge and that of parties or counsel where proceedings Proceedings necessary.

04.09.2026 Mr. M, Irfan Ghaznavi, Advocate for the petitioner.

Umair Majeed Mallik, J:- Through this petition under Article 199 of the Constitution, the petitioner has called in question order dated 01.09.2026 passed by the learned District Judge, Islamabad West, whereby her application under Section 25-A(2) of the Family Courts Act, 1964 for transfer of the guardianship petition was dismissed.

2.Briefly, the relevant facts are that the respondent No.1 filed a guardianship petition under Section 25 of the Guardian and Wards Act, 1890, for custody of his minor daughter. On 21.03.2022, the petitioner filed an application under Section 9 of the Guardian and Wards Act, read with Rule 6(a) of the West Pakistan Family Courts Rules, 1965, seeking return of the guardianship petition for want of territorial jurisdiction; the application was allowed and, vide order dated 30.09.2024, the guardianship petition was returned. The respondent No.1's appeal against that order was allowed by the learned Additional District Judge XI, Islamabad-West vide order dated 16.07.2025, and the matter was remanded to the learned Guardian Court for decision on merits. Being aggrieved, the petitioner assailed this

order before this Court in W.P. No.2941/2025, which was partially allowed vide judgment dated 28.10.2025, modifying the impugned order to the extent that the learned Family Court was directed to determine the question of territorial jurisdiction in the light of Rule 6(a) of the Family Courts Rules. During the pendency of that writ petition, the learned Guardian Judge, vide order dated 21.10.2025, directed the petitioner to comply with the earlier orders dated 02.03.2023 and 04.12.2023 for production of the minor; the petitioner thereupon filed an application under Section 25-A of the Family Courts Act, 1964, seeking transfer of the case, which was dismissed vide order dated 25.10.2025. On 28.10.2025, the petitioner filed an appeal against the order dated 21.10.2025, which was allowed by the learned Additional District Judge XI, Islamabad-West, vide order dated 10.11.2025; the order dated 21.10.2025 was set aside, with directions to the learned Guardian Judge to first determine the question of territorial jurisdiction in terms of this Court's judgment in W.P. No.2941/2025. Upon remand, the learned Guardian Judge, vide order dated 17.01.2026, allowed an application of respondent No.1 and summoned record from NADRA and the CDA for that purpose. The petitioner assailed the said order in appeal, and the learned Additional District Judge XI, Islamabad West, vide order dated 17.06.2026, allowed the appeal to the extent of summoning of records from the CDA and NADRA. On 10.07.2026, the petitioner filed a second application under Section 25-A(2) of the Family Courts

Act, 1964, again seeking transfer of the proceedings, which was dismissed vide the impugned order dated 01.09.2026, giving rise to the instant petition.

3.Learned counsel for the petitioner argued that impugned order is nonspeaking order and while passing the impugned order, learned District Judge West, Islamabad ignored the fact that the petitioner has not been dealt with by the learned Guardian Judge in accordance with law and learned Guardian Judge has successively been passing interims orders against the petitioner without any legal backing.

4.The arguments advanced by learned counsel for the petitioner have been heard and the record has been carefully perused.

5.The power to transfer a judicial proceeding is not intended to furnish a litigant with a forum of choice merely because certain orders have gone against him; it is an exceptional relief, to be exercised with caution, and only where the circumstances placed before the Court establish a reasonable apprehension that justice may not be fairly administered if the proceedings continue before the same Court. This does not mean that actual or demonstrable bias must invariably be established before a transfer can be ordered; the settled test is whether, viewed objectively and in light of the surrounding circumstances, a reasonable apprehension of bias or prejudice exists. Justice must not only be done but must manifestly appear to have been done. At the same time, the apprehension must be

reasonable and founded upon circumstances capable of judicial assessment; a litigant's mere subjective feeling, suspicion, or dissatisfaction cannot be elevated to a legal ground for transfer.

6.The Hon’ble Supreme Court, in Asif Ali Zardari v.

The State (PLD 2001 SC 568), has classified judicial bias into three distinct categories. The first is bias in the subject matter, where the Judge is himself a party to, or has a direct legal interest in, the litigation, such that a bias must be assumed. The second is pecuniary interest in the cause, however slight, which disqualifies the Judge irrespective of whether the decision was in fact affected by such interest, so that where a Judge having such interest participates in a decision, the decision itself stands vitiated. The third, and the category most frequently invoked, is personal bias, arising from relationship or similar considerations, or from personal hostility resulting from events occurring either before or during the trial. As regards this third category, the Supreme Court held that the relevant inquiry is whether there exists, in the mind of the litigant, a reasonable apprehension that he would not get a fair trial, the applicable test being one of real likelihood of prejudice rather than certainty, and that real likelihood signifies the apprehension of a reasonable man apprised of the facts, and not the suspicion of fools or capricious persons. The present controversy, being founded solely on a sequence of interlocutory orders passed against the petitioner, falls, if at all, within this third category of

personal bias, and must accordingly be examined against the standard laid down in Asif Ali Zardari's case.

7.In Sameer Ehsan Ullah Makhzan, etc. v. Muhammad Asif Zaman (PLD 1993 Lahore 554), the Hon’ble Lahore High Court examined an identical allegation of bias against a trial Judge founded on adverse judicial orders, and held:- “I have considered the arguments addressed by the learned counsel for the petitioners and have also perused the comments submitted by the learned Civil Judge. There is no cavil with the proposition that justice is not only to be done but it should appear to have been done, and that any genuine apprehension in the mind of the litigant, based on valid and reasonable grounds, that he shall not get justice at the hands of the Presiding Officer, will be a valid ground for transfer of a case from that Court. However, it is equally important that the Courts should not be unnecessarily harassed merely on the basis of a baseless apprehension of a reckless litigant, which is the result of whims, surmises and conjectures. Learned Judicial Officers who preside over the Court have to be given full protection against frivolous allegations, in view of the onerous, noble and dignified duty they perform, for the performance of which they are directly responsible to the Almighty Allah. They should not be allowed to be harassed and maligned unnecessarily by litigants merely because they pass judicial orders against them.”

8.The Court further held that if a litigant considers a judicial order unlawful, the remedy lies in challenging it before a higher forum, and that permitting transfer on such flimsy grounds would only prolong litigation, waste public time, and

erode the confidence reposed in Presiding Officers who are bound to administer justice without fear or favour.

9.The same principle was reiterated by the Hon’ble Lahore High Court in Mian Muhammad Rafiq Saigol v. BCCI and others (1996 CLC 1390), where it was held that while a reasonable apprehension of injustice can found a transfer application, Presiding Officers must equally be protected from frivolous transfer applications, so that even-handed justice is not compromised through fear of being maligned; a balance must be struck to ensure that cases are not transferred merely on the basis of unfounded and conjectural apprehensions, and that an adverse judicial order, without more, does not justify transfer where the aggrieved party has a remedy before a higher forum.

The same principle was applied by the Honor’ble Sindh High Court in Ajeet Kumar v. Shakeel Ahmed (2017 CLC Note 13).

10.In Hassan Ali Gondal, etc. v. Karim Enterprises (2015 YLR 544), where the petitioners had sought transfer of their case from the Rent Tribunal on the ground of bias arising from the dismissal of two interlocutory applications, the Hon’ble Lahore High Court held:-

“...the mere fact that the learned Rent Tribunal has decided a couple of interlocutory applications against the petitioners simplicitor was not sufficient to establish that there was real likelihood of his being biased. Interim orders passed by the learned Rent Tribunal on petitioners' miscellaneous applications were

amenable to revisional jurisdiction. There is nothing on the record to show that the said orders on miscellaneous applications were passed with mala fide or for some extraneous consideration. Even a wrong order passed by the court in good faith would not furnish a ground of bias.”

11.In Rashid v. Mst. Farah Naz (2019 CLC 1384), the Honorable Sindh High Court, examining an almost identical allegation of bias against a Family Court Judge, held that transfer is to be ordered only in exceptional circumstances, that a generalized allegation of bias is insufficient and must be supported by specific particulars and, where possible, plausible corroboration, and that the issue of bias, being a serious matter, cannot be founded merely on a litigant's dissatisfaction with the attitude or conduct of the Presiding Officer.

12.These principles are fully applicable to the controversy before this Court. A litigant cannot, by merely collecting adverse orders passed in the course of proceedings and placing them cumulatively before a superior Court, convert judicial disagreement into proof of bias. An order may be erroneous, inconvenient, or even liable to be set aside in appellate or constitutional jurisdiction, but that circumstance alone does not establish personal prejudice or partiality on the part of the Judge who passed it. The distinction between an adverse judicial order and judicial bias is fundamental: the former concerns the correctness of a decision and is ordinarily capable of correction through the remedies provided by law, while the latter concerns

the impartiality of the adjudicator and strikes at the foundation of a fair trial. Where every adverse interlocutory order to be treated as evidence of bias, virtually every unsuccessful litigant would become entitled to seek transfer, frustrating the statutory hierarchy of remedies and undermining the independence of the subordinate judiciary.

13.The record placed before this Court discloses no personal relationship, pecuniary interest, animosity, prior hostility, extraneous connection, or other circumstance from which personal bias of the learned Guardian Judge towards the petitioner may reasonably be inferred; nor has any specific utterance, act, or conduct been shown demonstrating that the learned Judge has pre-judged the rights of the parties or denied the petitioner a fair opportunity of presenting her case. The circumstances narrated by learned counsel for the petitioner relate substantially to adverse interim orders passed in the course of adjudication, namely the orders dated 21.10.2025 and 17.01.2026, which were subjected to judicial scrutiny by the appellate court and corrected vide orders dated 28.10.2025 and 17.06.2026, at successive appellate level. This demonstrates the availability and functioning of the ordinary judicial remedies; it does not establish partiality on the part of the learned Guardian Judge. Nor has the petitioner pointed to any instance after these orders capable of objectively demonstrating that the learned Guardian Judge has formed a final or irrevocable opinion against her; the apprehension pleaded is essentially an inference

drawn from a sequence of interim orders, and such an inference, standing alone, cannot found the exercise of the extraordinary power of transfer.

14.A closer examination of the record further reveals a discernible pattern: on each occasion that the learned Guardian Judge passed an interim order adverse to the petitioner, she responded by moving an application for transfer of the case.

When the learned Guardian Judge passed the order dated 21.10.2025 directing production of the minor, the petitioner moved a transfer application; yet it is significant that this order did no more than direct compliance with the earlier orders dated 02.03.2023 and 04.12.2023, passed by the predecessor of the incumbent Guardian Judge, and did not reflect any independent or fresh view formed by the present incumbent. Similarly, when the learned Guardian Judge passed the order dated 17.01.2026, which was subsequently modified by the appellate order dated 17.06.2026, the petitioner once again moved an application for transfer. This sequence demonstrates that the petitioner's recourse to the remedy of transfer has, on each occasion, coincided precisely with an order unfavourable to her, rather than with any independent or objectively verifiable circumstance touching the impartiality of the learned Guardian Judge. Such a practice, of treating every adverse interim order as an occasion for seeking transfer, cannot be countenanced, for it would reduce the extraordinary jurisdiction of transfer to a routine recourse available to a disappointed litigant after every

unfavorable order. Viewed in this light, the apprehension of bias pleaded by the petitioner is not a reasonable apprehension grounded in objective circumstances, but a subjective apprehension born of dissatisfaction with the outcome of successive interlocutory orders.

15.Applying the test of real likelihood of prejudice explained in Asif Ali Zardari's case, and the principles noted above, this Court is unable to conclude that the petitioner has demonstrated circumstances sufficient to generate a reasonable apprehension that the learned Guardian Judge would not adjudicate the matter impartially. That the petitioner has previously sought transfer, that certain adverse interim orders were passed against her, or that some orders were subsequently interfered with by an appellate Court, cannot by itself furnish the necessary foundation for such apprehension. These proceedings, moreover, concern the custody and welfare of a minor, in which the paramount consideration is the welfare and best interest of the child, and which are not to be allowed to become a contest between the parents over the choice of forum or Judge. Repeated applications for transfer, unless supported by compelling circumstances, risk delaying determination of the substantive question and thereby prejudicing the very subject matter of the proceedings. A careful balance must therefore be struck: a litigant should never be compelled to face trial where circumstances objectively create a reasonable apprehension of prejudice, but the power of transfer cannot be allowed to

become a mechanism by which a party dissatisfied with the pace, direction, or interim orders of proceedings repeatedly seeks a change of forum, to the detriment of judicial discipline, certainty of proceedings, and public confidence in the administration of justice.

16.It bears emphasis that a Judge is required to decide according to law, even where the resulting order is not agreeable to one or the other party; the expression of a judicial view on an interlocutory matter cannot itself be equated with bias. Where a party considers such a view legally erroneous, the appropriate course is to avail the statutory or constitutional remedy available against that order, and not to infer personal prejudice from the mere fact of an adverse decision. The petitioner has, in fact, availed such remedies on more than one occasion, and the record shows that her objections have been entertained by the appellate forum and appropriate orders passed accordingly; this circumstance militates against, rather than supports, the assertion that she has been denied access to an impartial judicial process.

17.Confidence in the Courts is undoubtedly of the highest importance, but judicial confidence is not maintained by accepting every unsubstantiated assertion of bias; it is strengthened when Courts apply the same objective standard to all litigants, protecting a party against genuine prejudice while safeguarding judicial officers from transfer merely because their

orders are unpopular with a litigant. The power of transfer is a judicial power, not a right available on demand, to be exercised only upon the Court's satisfaction that the circumstances make transfer necessary in the interest of justice; the burden lies upon the applicant to place before the Court sufficient material from which such necessity can objectively be inferred. Measured against this standard, the petitioner's case, founded primarily on the sequence of judicial orders and the consequent erosion of her confidence, fails to meet the requisite threshold; the record contains no independent, cogent, or corroborative material demonstrating actual prejudice, personal animosity, pre- judgment, or any other circumstance giving rise to a reasonable apprehension that the learned Guardian Judge is biased or unable to adjudicate the matter fairly, impartially, and in accordance with law.

18.For these reasons hereinabove, no ground has been made out warranting interference with the impugned order dated 01.09.2026 passed by the learned District Judge, Islamabad West. The instant petition is dismissed in limine.

19.It is clarified that the observations made herein are confined strictly to the question of transfer. This Court expresses no opinion on the merits of the guardianship proceedings or the question of territorial jurisdiction, all of which shall be determined by the learned Guardian Judge strictly in accordance with law and the directions already issued by this Court in W.P.

No.2941/2025. It is expected that the learned Guardian Judge shall conduct the proceedings with complete impartiality, patience and detachment, affording equal and adequate opportunity to both sides, without being prejudiced by this order. Copy of this order be sent directly to the learned trial Court.

(UMAIR MAJEED MALIK)

JUDGE

APPROVED FOR REPORTING

Shafqat*/