2018 PLP 38 (CLCN)

MUDASSIR KHALID ABBASI, J.

Through this constitutional petition order dated 11.5.2017 passed by District and Sessions Judge, Lahore has been called in question whereby an application for transfer of case filed by the petitioner was declined.

2. Precisely facts of the case are that an application under section 25-A of the Guardians and Wards Act, 1980 was filed for the custody of minor which is pending adjudication before Guardian Judge Lahore. Petitioner filed an application before District Judge Lahore for transfer of the aforecited petition from the court of Umer Farooq Warriach Judge Family Court to any other competent court of jurisdiction on the ground that he has lost confidence in the trial court.

3. This application was declined through impugned order dated 11.5.2017 passed by the District Judge Lahore.

4. Learned counsel for the petitioner has argued that the applicant recorded her statement that the respondent talked with the other person that I have relations with the learned guardian Judge and I received order in my favour, therefore, the applicant has lost his confidence upon the above said learned Guardian Judge, learned Guardian Judge turned down the statement of the applicant; that the petitioner has no confidence in the court; that the attitude of the learned judge is biased with the petitioner and is partial, it has been shown by the learned judge in open court; proprietary demands that the cases should be heard by some other court; that if the case is not transferred it will be great injustice and the petitioner will suffer loss and injury.

5. Arguments heard. Perusal of the application filed by the petitioner before the District Judge reveals that petitioner sought transfer of her case on the ground that she has over-heard conversation of the respondent saying that I have relations with the learned Judge Guardian Court and will get order in my favour, therefore, the applicant/petitioner has lost faith in the court. Moreover, the attitude of the Judge is biased and partial towards the petitioner which he has shown in the open court.

6. Before adverting to the merits of the case it would be appropriate to analyse the view taken by the apex court with regard to the element of bias in a Judge. While applying the test and kinds of bias Honourable Supreme Court in a celebrated judgment in Asif Ali Zardari's case (PLD 2001 SC 568) has very elaborately and exhaustively dealt with the subject. While defining the connotation Supreme Court has observed as under: "Bias" is synonymous with "partially", and has strictly to be distinguished from "prejudice". Under particular circumstances, bias has been described as a condition of mind, and has been held to refer, not to views entertained regarding a particular subject matter, but to the mental attitude or disposition toward a particular person and to cover all verities of personal hostility or prejudice against him". Bias is said to be of three different kinds: (a) A Judge may have a bias in the subject matter which means that he is himself a party or has direct connection with the litigation, so as to constitute a legal interest. A 'legal' interest means that the Judge is in such a position that a bias must be assumed'. (b) Pecuniary interest in the cause, however slight, will disqualify the Judge, even though it is not proved that the decision has in fact been affected by reason of such interest. For this reason, where a person having such interest sits as one of the Judges, the decision is vitiated. (c) A Judge may have a personal bias towards a party owing to relationship and the like or he may be personally hostile to party as a result of events happening either before or during the trial. Whenever there is any allegation of personal bias, the question which should be satisfied is

"Is there in the mind of the litigant a reasonable apprehension that he would not get a fair trial, the test is whether there is 'real likelihood' is the apprehension of a reasonable man apprised of the facts and not the suspicion of fools or capricious persons'. In other pronouncement cite as Parvez Musharraf v. Nadeem Ahmad, Advocate (PLD 2014 SC 585), Full Bench of honourable Supreme Court has expressed the view regarding the biased in a Judge in the following manner; "Actual bias" and "reasonable perception of bias "

Distinction and scope

Assertion of bias against a Judge could take two forms recognized by law viz, 'actual' bias and 'reasonable perception' of bias even though there may be no actual bias

Actual bias was alleged on animosity amounting to bias

To demonstrate such bias, a factual averment had to be made in the pleadings of the party alleging it

Question as to whether the factual allegation was true or not, would not arise if the relevant fact had not been pleaded-- Perception of bias, without there being actual bias("reasonable perception of bias') was also recognized by law but again it had to be founded on a mere solid footing than allegations which were imaginary or which were based on a subjective opinion divorced from objective reality".

7. Keeping in view the aforecited dictums laid down by the apex court it can be safely observed that the petitioner has failed to establish the bias in Judge because utterness of the other side that she will get favour from the court does not constitute sufficient ground for transfer of case from one court to another. Contention of counsel for the petitioner that the trial court has partial against the petitioner is not supported by any sort of evidence. In order to demonstrate bias against Judge it must be established that the same act or expression of a judge visible on the ground will adversely effect the case mere assumption and apprehension cannot be entertained as a tangible evidence therefore, bald statement cannot be made basis for transfer of case. I have minutely gone through the record and the impugned judgment there is no ground for interference under the constitutional jurisdiction by this court. In view of above this petition is dismissed in limine. MQ/S-54/L Petition dismissed.